Montgomery Ward and Co. v. Marvin Riggs Co., 12895

• Decision Date: 11 July 1979
• Docket Number: No. 12895,12895
• Citation: 584 S.W.2d 863
• Parties: MONTGOMERY WARD AND COMPANY et al., Appellants, v. MARVIN RIGGS COMPANY, Appellee. . Rehearing Denied on Motion for Rehearing
• Court: Texas Court of Appeals

Page 863

584 S.W.2d 863

MONTGOMERY WARD AND COMPANY et al., Appellants, v. MARVIN RIGGS COMPANY, Appellee.

No. 12895.

Court of Civil Appeals of Texas, Austin.

Rehearing Denied on Motion for Rehearing July 11, 1979.

Second Motion for Rehearing Denied Aug. 22, 1979.

Tom H. Whiteside, Griffis & Griffis, San Angelo, for appellants.

Richard T. Miller, James A. Childress, Senterfitt, Adams, Miller & Childress, San Saba, for appellee.

SHANNON, Justice.

The opinion of this Court handed down on May 30, 1979, is withdrawn, and the following opinion replaces it.

Appellee Marvin Riggs Company sued appellants Montgomery Ward and Company and its employee Michael Lynn Cross in the district court of San Saba County. Appellee's suit was to recover for damages to appellee's truck sustained in a collision with Ward's truck. After a jury trial, judgment was entered against both appellants for $10,681.00 in compensatory damages and against Montgomery Ward for $5,000.00 in exemplary damages. We will affirm the judgment.

In its trial petition, appellee declared that on May 31, 1977, Cross struck appellee's truck while negotiating a "U-turn" in a Ward's truck on Highway 16 north of San Saba. Appellee pleaded that Cross was guilty of negligence in several respects. Appellee also alleged that Montgomery Ward negligently entrusted the truck to Cross, "an inexperienced, reckless, careless, irresponsible and incompetent" driver, and that under the circumstances the entrustment of the truck to Cross constituted gross negligence.

In response to the court's charge, the jury answered that Cross was guilty of several acts of ordinary negligence that proximately caused the collision. In response to those issues submitting appellee's theory of negligent entrustment, the jury found that Cross was incompetent to drive the truck, that in the exercise of ordinary care Montgomery Ward should have known of Cross' driving incompetence, that Montgomery Ward was grossly negligent in entrusting the truck to Cross, and that Montgomery Ward's act of entrusting the truck to Cross was a proximate cause of the collision. The jury assessed exemplary damages in the sum of $5,000.00.

Appellants' points of error two, three, and four are that the jury's answer that Ward was grossly negligent in entrusting the truck to Cross is supported by no evidence or alternatively by insufficient evidence. In considering a "no evidence" point, the reviewing court must reject all evidence contrary to the jury's findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). In reviewing factual sufficiency points of error, the court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Cross was twenty at the time of the collision. He had never held a job that entailed driving a truck prior to his employment by Montgomery Ward. Cross testified that he had received in the year preceding his employment by Ward two traffic citations for speeding, one for running a stop sign, and one for failing to yield right of way. Cross testified that no one gave him any special training at Ward for driving a truck. He passed the examination for a commercial operator's license after he had been employed by Ward. Prior to the trip in question, Cross had driven the truck alone only one time. The truck that Cross was operating at the time of the collision was over twenty-eight feet long, weighed ten to twelve thousand pounds, and was difficult to drive because a van behind the cab restricted the driver's vision.

Appellee relied primarily upon the testimony of Skip Sommeral for proof of its negligent entrustment case. Sommeral was a former employee of Montgomery Ward, where he had been a truck driver and delivery man. At the behest of Ward, Sommeral tried to teach Cross how to drive a truck. He encouraged Cross to study the manual so that Cross might obtain his commercial license. On one occasion when Sommeral and Cross were on a run between Rising Star and De Leon, Sommeral permitted Cross to drive the truck. He also drove two blocks in De Leon. During that trial run, Cross got so "excited on a turn" that Sommeral decided to resume driving.

Sommeral testified that Cross could not judge distances accurately. Cross may have had a vision problem. He had difficulty in learning to use the mirrors of the truck. When Cross was put in a stressful situation he became "flustered and nervous almost to the point where he couldn't do anything." Cross was a nervous driver and a slow reactor. He was also hard of hearing.

Several times Sommeral told John Hopewell, the operating assistant manager of Montgomery Ward in Brownwood, that Cross was "awfully slow to catch on about the truck" and that Cross should not be "turned loose on the truck." Before Sommeral left Ward's employment, he told Hopewell that it would be "a good long" time before Cross could become "really safe" with the truck. He told Hopewell, in addition, that Cross might "not ever be a truck driver because (Cross) was nervous." According to Sommeral, he reported to Hopewell that Cross ". . . wasn't a truck driver at that time (May of 1977) and that it was going to take a considerable time and patience with him to make him a truck driver if he ever became one." One response by Hopewell to such reports of Cross' driving competence was that because Cross had a commercial license, he was qualified to drive a truck.

Hopewell testified that prior to hiring Cross he checked with the Brownwood Police Department with respect to Cross' police record, but did not write to the Department of Public Safety to obtain his driving record. The testimony was that the driving record showed that Cross' operator's license had been suspended but "probated" just prior to his employment by Ward. Hopewell testified that he would not have hired Cross had he known that Cross' driver's license had been suspended.

The court defined gross negligence in the charge as ". . . such an entire want of care which would raise the belief that the act or omission complained of was the result of conscious indifference to the rights and welfare of the person or persons to be affected by it." Appellants preserved no objection to the definition.

Rejecting all of the evidence contrary to the jury's finding of gross negligence and considering only the facts and circumstances that tend to support that finding, Renfro Drug Co. v. Lewis, supra, we have concluded that the jury's finding is supported by some evidence. Montgomery Ward made no effort to obtain a company of the driving record of Cross. Had that record been obtained, Ward would have been apprized of Cross' past driving performance. Cross lacked judgment and suffered from visual and hearing deficiencies. Cross could not handle stressful situations. Sommeral was of the view that Cross was slow in learning how to drive a truck and that, accordingly, he should not be "turned loose" with such a vehicle. There was evidence that Sommeral related these facts to Ward's agent, Hopewell. Hopewell, knowing Cross' minimal driving capabilities, put Cross behind the wheel to make the delivery to San Saba. The "no evidence" point is overruled.

We have considered all of the evidence in the record, some of which has been detailed above, and have concluded the jury's finding of gross negligence is not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, supra. Appellants' "insufficient evidence" points of error are overruled.

Appellants' first point of error is that the district court erred in entering judgment awarding exemplary damages against Montgomery Ward because appellee failed to obtain a jury finding of gross...