Montoya v. Nueces Vacuum Service, Inc.

• Decision Date: 29 July 1971
• Docket Number: No. 585,585
• Citation: 471 S.W.2d 110
• Parties: Jose A. MONTOYA and wife Olivia Montoya, Appellants, v. NUECES VACUUM SERVICE, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 110

471 S.W.2d 110

Jose A. MONTOYA and wife Olivia Montoya, Appellants, v. NUECES VACUUM SERVICE, INC., et al., Appellees.

No. 585.

Court of Civil Appeals of Texas,

Corpus Christi.

July 29, 1971.

Rehearing Denied Sept. 9, 1971.

Edwards & De Anda, William R. Edwards, David L. Perry, Corpus Christi, for appellants.

Dyer, Redford, Burnett, Wray, Woolsey & Dunham, S. Eldon Dyer, J. M. Burnett, Corpus Christi, House, Mercer, House & Brock, R. H. Mercer, San Antonio, for appellees.

OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial that appellants take nothing by their suit.

This suit was instituted by appellants Jose A. Montoya and wife Olivia Montoya, against Nueces Vacuum Service, Inc., and Jesse Lee Smith, defendants below and appellees here, seeking damages on account of the death of their son Steve Frank Montoya who was killed in an automobile accident occurring on October 14, 1966 in Nueces County, Texas. Steve Frank Montoya, usually referred to as 'Frank' or 'Frankie', was survived by his widow, Gloria Montoya, and a daughter, Stephanie, born after his death. The claims of the widow and minor daughter were settled prior to trial of the instant suit and are not involved herein.

In answer to two special issues inquiring as to the amount of compensation for the pecuniary damage sustained by each appellant as a result of the death of the son, Steve Frank Montoya, the jury found zero in each instance. A take-nothing judgment was rendered on the verdict.

Appellants assert 20 points of error. The first eleven points involve a basic contention that appellants are entitled to reversal and rendition of judgment in their favor for $50,000.00. Points 12 through 20 involve contentions which if sustained would result in reversal of the judgment and remand for new trial. Appellants' points 14 and 16 assert that the trial court erred in failing to grant a new trial because the jury answers to special issues 1 and 2 are each contrary to the overwhelming weight and preponderance of the evidence.

We have concluded that appellants' first eleven points should be overruled but that their points 14 and 16 should be sustained and that the judgment should be reversed and the cause remanded for a new trial.

We will first consider appellants' primary contention under their first eleven points--that they were and still are entitled to judgment as a matter of law that they recover damages in the amount of $50,000.00 from appellees. This case was called for jury trial on October 7, 1969. At that time the trial pleadings consisted of appellants' original petition, filed on July 8, 1968, and defendants' first amended original answer, filed on February 6, 1969 .

The record reflects that the first proceedings had on the morning of October 7, 1969, were as follows:

'MR. HOUSER: Now comes the Defendants herein, Nueces Vacuum Service and Jesse Lee Smith, and make this their Motion In Limine prior to the entry of the jury panel into the room and prior to the beginning of the trial of said case and having handed to the Court and to Counsel for the Plaintiffs Defendants' Admission In Order To Open And Close, and Said Defendants' Admission In Order To Open And Close, an admission of liability having been filed, and moves the Court by the following Motion In Limine as follows:

Defendants in this case move the Court instruct Counsel for the Plaintiffs insofar as any opening remarks; insofar as any argument, explanation, questions or encounter, verbal or otherwise are concerned; limit himself to the strict and sole issue in this case in view of the admission of liability on behalf of Defendants to that one particular issue which will be litigated in kind and character, that being the damages occasioned to the Plaintiff as a result of the incident made the basis of this suit.

Defendant herein say and point out to the Court that it is undisputed in this case upon the documents on file and upon the pleadings of the Plaintiff on file that the deceased, who is made the basis of this suit, was an adult, twenty years old, married, emancipated and living away from home. It is also undisputed in this case that the deceased made the incident and basis of this suit was also working for--on a paid basis for his father in a family business and was being paid a salary on a per hourly basis. The sole issue to be litigated in this case is the amount of economic or monetary contribution which would have been made to the Plaintiff or Plaintiffs by the deceased during the period of his majority less any amounts of services or monetary gain which would have been contributed by the Plaintiffs to the deceased, and the Defendants herein move the Court to instruct Counsel accordingly to limit all issues, all questions and all performances before the jury by Counsel for the Plaintiff and by the Plaintiffs to those particular issues.

Wherefore, the Defendants move as pursuant to this motion that Counsel for the Plaintiff and the Plaintiffs be instructed accordingly and that the Court admonish all persons concerned with this case to limit his questions and encounters and endeavors to the particular issue at hand.'

The instrument referred to by counsel for appellees in his foregoing motion in limine reads as follows:

'DEFENDANTS' ADMISSION IN ORDER TO OPEN AND CLOSE

'TO THE SAID HONORABLE COURT:

NOW COMES THE DEFENDANT in the above entitled and numbered cause and admits that the Plaintiff is entitled to recover as set forth in his petition, except so far as it may be defeated in whole or in part by the allegations of the answer constituting a good defense, which may be established on the trial.

WHEREFORE, he prays that this admission be entered of record and that this defendant be allowed to open and close in adducing the evidence and in the argument of the cause.'

Immediately following the statement of appellees' Motion in Limine, hereinabove set out, and the tender of appellees' above referred to 'admission', there was considerable discussion, and apparent confusion, concerning the same, as is initially reflected in some 22 pages of the Statement of Facts.

Appellees, from the beginning of the proceedings on October 7, 1969, have contended that their admission related only to the issue of liability, leaving the issues of damages to be determined by the jury. Appellants' position concerning appellees' admission was not always the same and will be discussed further hereinafter.

Immediately after the statement by counsel for appellees of their Motion in Limine, as hereinbefore set out in full, the following proceedings took place.

'THE COURT: Reply? Have you all finished?

MR. EDWARDS: As I read the Defendants' Admission In Order To Open And Close, they have not admitted--well, let me back up. There has been raised by the defensive pleadings in this case contributory negligence, joint venture, sole cause, unavoidable accident. As I read this Defendants' Admission In Order To Open And Close, those things are not admitted. There is an 'Except for' in here, says 'except so far as it may be defeated in whole or in part by the allegations of the answer constituting a good defense, which may be established on the trial.' Now, as I read this, they have not admitted liability and unless and until they admit liability, I have a right to query the jury on all of the liability facts involved in this case.

THE COURT: Are you admitting liability?

MR. HOUSER: Yes, sir. This is, of course, is taken from--where you admit liability, which we have, that is, that they are entitled to recovery, that is, money damages in this case. That's what we are stipulating that they are entitled to recover. We are admitting liability but we are not admitting the amount that they are entitled to recover, which is the only thing we are quarreling with when we say 'which may be defeated in whole or in part by a good defense.' That defense may be that the damages are not what the Plaintiff alleges. Now, when we have admitted liability, we cannot raise the issue of contributory negligence. It would not be--would not be any evidence brought in by the Defendant; be no witnesses called by the Defendant. The only incident in this case is with regard to damages and that's the only issues to litigate.

MR. EDWARDS: Under those circumstances, I would like a docket entry that the issue of liability--the issues of liability are foreclosed in favor of the Plaintiff by Admission of the Defendants.

THE COURT: All right, now, on--

MR. HOUSER: Your Honor, while you are making that docket entry, I would like it also entered that the Defendants' Admission In Order To Open And Close had been filed, which I understand under the law must be done.

MR. EDWARDS: Now, insofar as their right to open and close in this case, unless they are willing to admit that unless they prove to the contrary and assume the burden of proof of cutting down the $50,000 that we have alleged as damages in this case, then we have the burden not only of going forward, but have the burden of persuasion on the issue of damages and we still have the right to open and close.'

The court then recessed for one hour and reconvened at 10:22 A.M. At that time the colloquy between the court and counsel continued, in part as follows:

'MR. EDWARDS: Judge, I would like--this is something that is completely a surprise to me, that they were going to admit liability . They have an allegation of defense on file that is as long as my arm with one after another of allegations of contributory negligence and other things, and if it--I would like sufficient time--probably going to take me about an hour to research the question of whether they have the right. I only want to try this lawsuit once, but I want my rights.

THE COURT: Any other comments, gentlemen, before we rule here?

MR. HOUSER: No, sir.

MR. EDWARDS: We don't think they are entitled to open and close under the cases because we still have under any--any stretch of...