Johnson v. Holly Farms of Texas, Inc.

• Decision Date: 30 April 1987
• Docket Number: No. 07-85-0224-CV,07-85-0224-CV
• Citation: 731 S.W.2d 641
• Parties: W.D. JOHNSON and Wife, Sally Johnson, Appellants, v. HOLLY FARMS OF TEXAS, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 641

731 S.W.2d 641

W.D. JOHNSON and Wife, Sally Johnson, Appellants, v. HOLLY FARMS OF TEXAS, INC., et al., Appellees.

No. 07-85-0224-CV.

Court of Appeals of Texas,

Amarillo.

April 30, 1987.

Judgment Amended on Rehearing May 28, 1987.

W.H. Brian, Jr. and William A. Hill, Culton, Morgan, Britain & White, Amarillo, Chris O. Concannon, Concannon, Traster & Concannon, Hugoton, Kan., for appellants.

Oscar P. Fields, Stokes & Fields, James Besselman and Kelly Utsinger, Underwood, Wilson, Berry, Stein & Johnson, Marvin W. Jones, Gibson, Ochsner & Adkins, Amarillo, for appellees.

Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.

COUNTISS, Justice.

This is a tort suit by which appellants W.D. Johnson and Sally Johnson, the surviving parents of 17 year old Amy Johnson, seek recovery for damages caused by her death. The Johnsons appeal from a take-nothing judgment in favor of appellees Holly Farms of Texas, Inc., Benford Earl Husband, Robert Harold Peret and Cody Hall, and, by three points of error, attack two adverse jury findings and one failure by the jury to find an alleged fact of negligence. All appellees respond to the points and appellees Holly Farms and Husband advance two conditional cross-points. We affirm in part, and reverse and remand in part.

Late in the afternoon of July 29, 1983, appellee Peret was driving his car and pulling a rented trailer on U.S. 287, a four lane divided highway between Amarillo and Dumas. A few miles south of Dumas, he lost control of the car and it and the trailer overturned, blocking the right-hand northbound lane of the highway. Soon after the upset, appellee Husband, a truck driver for Holly Farms, arrived at the scene and stopped the 18-wheel company truck in the right lane, behind Peret's overturned vehicle and trailer. Husband testified that he left the engine running and turned on his "flashers." Husband and Peret talked for a few minutes, then Husband decided to leave. However, seeing a stream of traffic approaching, he and Peret began to flag down the oncoming vehicles.

One of the oncoming cars was owned by appellant W.D. Johnson, driven by appellee Cody Hall and occupied by Amy Johnson and another girl. With the consent of Mr. Johnson, Hall had driven the car to Amarillo, picked up the girls at the airport and was returning with them to the Johnsons' home in Kansas. The car driven by Hall crashed into the rear of the Holly Farms truck, critically injuring Amy Johnson and the other passenger. Both died a short time later.

The Johnsons, individually and as representatives of Amy Johnson's estate, sued Holly Farms, Husband and Peret, alleging a cause of action for themselves under the wrongful death statute, Tex.Civ.Practice & Remedies Code Ann. §§ 71.001-71.011 (Vernon 1986), and a cause of action for Amy Johnson's estate under section 71.021 of the Civil Practice & Remedies Code, the survival statute. ^* Holly Farms and Husband then filed a cross-action against Cody Hall, seeking contribution and indemnity from him.

The case was tried before a jury and, in response to numerous special issues, the jury found Husband guilty of one act of The jury awarded the Johnsons $190,000 for pecuniary losses and $110,000 for mental pain and anguish and awarded Amy Johnson $50,000 for the physical pain and suffering and mental anguish she endured before her death. However, the trial court entered a take-nothing judgment because of the findings that Hall was the Johnsons' and Miss Johnson's agent and was guilty of the greater negligence.

negligence that proximately caused the collision, by failing to place reflective triangles or red flags behind his truck. The jury failed to find him negligent for parking on the highway. The jury also found Cody Hall guilty of several acts of negligence, but failed to find any negligence by Peret. The jury apportioned 40% of the negligence to Husband and 60% to Hall and found, in response to two separate inquiries, that Hall was acting as the agent for the Johnsons and for Amy Johnson when the wreck occurred.

By this appeal the Johnsons contend (1) they conclusively established Husband's negligence in parking on the highway and the failure of the jury to so find is contrary to the great weight and preponderance of the evidence; (2) the evidence is legally insufficient to support the finding that Hall was Amy Johnson's agent because she, as a minor, could not appoint an agent; and (3) the evidence is factually and legally insufficient to support the finding that Hall was the Johnsons' agent. By two conditional cross-points, Holly Farms and Husband contend (1) the jury's award to the Johnsons for mental anguish cannot stand because there was no evidence of physical manifestation of the damages, and (2) the trial court should not have submitted a damage issue for Amy Johnson's pain, suffering, and mental anguish because the evidence is factually and legally insufficient to prove that no administration was pending or necessary on her estate. We will resolve the issues in the order listed.

The Johnsons' initial contention is that they conclusively established an additional act of negligence by Husband. That contention is immaterial, the jury having found one act of negligence by Husband that proximately caused the collision. Any error in the submission or answering of additional grounds is harmless, because only one act of negligence and proximate cause is needed to expose a defendant to liability. See Wiley v. Browning, 670 S.W.2d 729, 733 (Tex.App.--Tyler 1984, no writ); Dallas Railway & Terminal Co. v. Orr, 210 S.W.2d 863, 869 (Tex.Civ.App.--Amarillo), aff'd, 147 Tex. 383, 215 S.W.2d 862 (1948).

The Johnsons inferentially recognize the foregoing rule but argue that it is not applicable when dealing with comparative negligence because the number of acts of negligence found or conclusively established has a direct effect on the jury's apportionment of negligence. If it does, then the jury has ignored the trial court's instruction that the "percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found." See 1 State Bar of Texas, Texas Pattern Jury Charges PJC 3.14 (Supp.1973); 10 West's Texas Forms, Civil Trial and Appellate Practice § 22.27 (1978). There is nothing in this record to indicate that the jury in this case ignored the instruction and we will not assume that it did so. Point of error one is overruled.

By their second point, the Johnsons attack the finding that Cody Hall was acting as Amy's agent. Because Hall was assessed 60% of the negligence, that finding prevented Amy's estate from recovering the $50,000 awarded to it by the jury. The Johnsons argue that the agency finding is immaterial, because Amy, as a 17 year old minor, lacked the legal capacity to appoint an agent. Tex.Civ.Practice & Remedies Code Ann. § 129.001 (Vernon 1986). The Johnsons are correct.

As a minor, Amy Johnson's actions cannot be held under the principles of agency, because she does not have the legal capacity to appoint an agent. Wanda Petroleum Co. v. Hahn, 489 S.W.2d 428, 430-31 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.); Sturtevant v. Pagel, 109 S.W.2d 556, 558-59 (Tex.Civ.App.--San Antonio 1937), aff'd, 134 Tex. 46, 130 S.W.2d 1017 (1939). § 129.001, supra. It follows It follows that Amy's estate is entitled to recover the $50,000 awarded to it by the jury. However, for reasons discussed at the conclusion of this opinion, we will remand to permit the trial court to resolve ancillary matters, rather than render judgment at this time. Point of error two is sustained.

that the negligence of an alleged agent cannot be imputed to a minor under the doctrine of respondeat superior. Kennedy v. Kennedy, 505 S.W.2d 393, 395 (Tex.Civ.App.--Austin 1974, no writ); Fuller v. Flanagan, 468 S.W.2d 171, 176 (Tex.Civ.App.--Fort Worth 1971, writ ref'd n.r.e.). Nor can Hall's negligence be imputed to Amy indirectly, through her father. Even though Hall's negligence became Mr. Johnson's negligence under the doctrine of respondeat superior, a parent's negligence is not imputable to a minor's cause of action. City of Houston v. Watson, 376 S.W.2d 23, 32 (Tex.Civ.App.--Houston 1964, writ ref'd n.r.e.); Missouri-Kansas-Texas R. Co. v. Hamilton, 314 S.W.2d 114, 118 (Tex.Civ.App.--Dallas 1958, writ ref'd n.r.e.); Kuemmel v. Vradenburg, 239 S.W.2d 869, 873 (Tex.Civ.App.--San Antonio 1951, writ ref'd n.r.e.).

By their third point, the Johnsons contend the evidence is factually and legally insufficient to support the finding that Cody Hall was their agent. Because the burden to prove agency was on Holly Farms, Husband, and Peret, we will review the legal sufficiency of the evidence under the review standards of Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965) and the factual sufficiency under the review standards of In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). Thus, we will first examine the record for any probative evidence to support the finding, ignoring all contrary evidence. If we find some probative evidence, we will test the factual sufficiency of that evidence by examining the entire record to determine whether the finding is clearly wrong and unjust.

We will also collate our evidentiary review with the pertinent substantive principles of agency law. "For there to be an agency relationship, there must be some act constituting an appointment of a person as an agent; it is a consensual relationship." Carr v. Hunt, 651 S.W.2d 875, 879 (Tex.App.--Dallas 1983, writ ref'd n.r.e.). However, a principal may confer actual authority on an agent either expressly or by implication, Intermedics, Inc. v. Grady, 683 S.W.2d 842, 847 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); Carr v. Hunt, 651 S.W.2d at 879, and the existence of an agency relationship may be implied from the conduct of the parties or from the facts and circumstances surrounding the transaction in question....