Lopez v. City Towing Associates, Inc., 04-86-00421-CV

Citation754 S.W.2d 254
Decision Date20 April 1988
Docket NumberNo. 04-86-00421-CV,04-86-00421-CV
PartiesCruz LOPEZ, Individually, as Personal Representative of the Estate of Amelia Lopez, et al., Appellant, v. CITY TOWING ASSOCIATES, INC., & City of San Antonio, Appellees.
CourtCourt of Appeals of Texas

David McQuade Leibowitz, San Antonio, for appellant.

David Stephenson, Audrey A. Haake, Brock & Kelfer, Mark R. Stein, James M. Hill, Plunkett, Gibson & Allen, San Antonio, Aaron L. Jackson, Austin, for appellees.

Before CADENA, C.J., and BUTTS and CHAPA, JJ.

OPINION

CADENA, Chief Justice.

Plaintiffs, Cruz Lopez, individually and as personal representative of the Estate of his deceased wife, Amelia Lopez, their children, Jo Ann, Ruben Serna, and Sandra Ann Lopez, and Margaret Castro, appeal from a $444,329.93 judgment in a wrongful death and survival action against City Towing and the City of San Antonio. The action arises out of an accident in which Amelia Lopez was killed when the car she was driving struck a towing cable which was stretched tautly at the level of her windshield across a public roadway in the 1100 block of Donaldson Avenue in San Antonio, Texas. At the time of the collision, a wrecker belonging to City Towing, Inc., and operated by its employee, Leroy Childs, was attempting to pull a garbage truck, belonging to the City of San Antonio, from the mud in an alley running perpendicular to Donaldson. The wrecker was parked in a driveway across Donaldson from the garbage truck. The towing cable was extended across Donaldson from the rear of the wrecker to the front bumper of the garbage truck. No warning devices, barricades or flagmen had been posted to warn motorists of the presence of the cable.

Plaintiffs are decedent's husband, her minor daughter and her adult children, and her mother. In their suit they alleged that the defendants were negligent in failing to take adequate safety precautions during the attempted recovery of the garbage truck, and that such failure constituted gross negligence.

Plaintiffs also alleged that City Towing was negligent in hiring Childs and in failing to properly equip and maintain the wrecker. Defendants denied liability and alleged that Mrs. Lopez was herself negligent.

A jury found City Towing to be 80% negligent, the City to be 16% negligent, and Mrs. Lopez to be 4% negligent. A joint and several judgment was rendered against defendants for $444,329.93 together with pre- and post-judgment interest and costs. Neither defendant was found to be grossly negligent and no exemplary damages were awarded. From this judgment plaintiffs have perfected their appeal. They bring 19 points of error, and defendants raise a cross-point.

EXCLUSION OF THE COLLISION REENACTMENT VIDEOTAPE

Plaintiffs complain of the refusal of the trial court to admit in evidence a videotape reenactment of the accident prepared by City Towing.

Evidence of an experiment made out of court is admissible when there is substantial similarity between conditions existing at the time of the occurrence giving rise to the litigation and at the time the experiment is conducted. Fort Worth & D. Ry. Co. v. Williams, 375 S.W.2d 279, 281-82 (Tex.1964).

In this case there is an important difference between the videotape and the events existing at the time of the accident. The videotape was prepared to represent on film what Mrs. Lopez would have seen as she approached the cable, but the tape did not show the cable stretched across the street. In the words of the photographer who made the tape, the cable "disappear[ed] between the lines of the video tape." The photographer testified that he was able to see the cable with his naked eyes while riding in a car two to three hundred feet away, but that he was not successful in recording what the eye could see. As the supreme court said in Williams, care and caution must be exercised in admitting this type of experiment evidence when the videotape purports to represent what the human eye could or could not see. 375 S.W.2d at 282.

Since the cable was visible to the witnesses of the accident--although the degree of visibility and when Mrs. Lopez could have first seen the cable were contested--the videotape failed to show the cable, the trial judge could have concluded that confusion would have occurred and that the differences between the actual occurrence and the film representation of the occurrence were incapable of explanation to the jury. When the question for decision is whether the trial court abused its discretion, the appellate court is not to substitute its judgment for that of the trial court, but must decide whether the trial court's decision was arbitrary or unreasonable. Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex.1970). Plaintiffs have failed to show that the trial court abused its discretion in refusing to admit the videotape.

APPORTIONMENT OF PEREMPTORY CHALLENGES

Plaintiffs next complain of the apportionment of peremptory challenges by the trial court. Six strikes were awarded to the plaintiffs and four strikes to each of the defendants, who were required to strike separately.

In a case involving multiple litigants on one side of a lawsuit, the question to be answered in allocating strikes is whether any of the litigants on the same side are antagonistic with respect to a question that the jury will decide. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 918 (Tex.1979). Where no antagonism exists, each side must receive the same number of strikes. Id.

Antagonism exists when each of the defendants alleges that the fault of another defendant was the sole cause of plaintiff's damage. Patterson, 592 S.W.2d at 918; Shell Chemical Co. v. Lamb, 493 S.W.2d 742, 745 (Tex.1973); Tamburello v. Welch, 392 S.W.2d 114, 116 (Tex.1965). Here, City Towing alleged in a third party action that the City was responsible in whole or in part for the negligence alleged by plaintiffs. The City and City Towing were thus antagonistic on the issue of whether the City's negligence was the sole cause of plaintiffs' injuries.

The defendants were antagonistic in a second regard. The City, in a cross-action, alleged that its employees were the borrowed servants of City Towing, thus contending that any liability in damages for actions of the garbage truck crew was the sole responsibility of City Towing. This creates antagonism between the defendants. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 5 (Tex.1986).

Finally, although the existence of cross-actions is not alone determinative, Patterson, 592 S.W.2d at 918, we note that the City and City Towing each sought indemnity and/or contribution from each other in cross-actions. We cannot say that the defendants were not so antagonistic to each other based on the information the trial court had before it at the time it apportioned strikes, that the apportionment of six to four to four, especially coupled with the requirement that the defendants strike separately, produced an unfair advantage for defendants.

JURY MISCONDUCT

Plaintiffs argue that the trial court erred in overruling their motion for new trial which alleged jury misconduct. We disagree. Both TEX.R.CIV.P. 327(b) and TEX.R.CIV.EVID. 606(b) provide:

A juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning is mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

The two juror affidavits attached to plaintiffs' motion for new trial concern, with one possible exception, matters occurring during the course of the jury's deliberations. These are inadmissible to show alleged jury misconduct. The "outside influence" spoken of in the rule must emanate from outside the jury and its deliberations. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 850 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.); Clancy v. Zale Corp., 705 S.W.2d 820, 829 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

The only possible allegation of "outside influence" occurs in the affidavit of juror Thomas Howard. He speculates that the foreman had reached agreements outside the jury room with either some unknown person or with certain other jurors. Such speculation does not raise an issue of jury misconduct. The juror affidavits must be "based upon knowledge and not suspicion or hope." Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644, 646 (1942).

Because plaintiffs failed to show by their affidavits the existence of material jury misconduct, the court did not err in failing to hear evidence on the motion. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d at 850; Robinson Electric Supply Co. v. Cadillac Cable Corp., 706 S.W.2d 130, 132 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). Consequently, the court did not err in overruling the motion for new trial on this issue.

EXCLUSION OF EXPERT ECONOMIST'S TESTIMONY

Plaintiffs next complain that the trial court erred in excluding the testimony of an economist regarding the value of lost guidance, counselling, love, affection, companionship and society suffered by plaintiffs. The economist's testimony was developed by plaintiffs in a bill of exception. The economist used a "substitution of services" theory to establish a dollar value for these damage elements. He testified that the guidance and counselling Mrs. Lopez would have provided for Jo Ann Lopez for the two-year period between the time of her death and Jo Ann's eighteenth birthday could be compared with the character of services provided by a school teacher. For those two years he determined that the...

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