Phillips v. McIntyre, 9674

• Court: Court of Appeals of Texas
• Writing for the Court: CORNELIUS
• Citation: 783 S.W.2d 261
• Parties: Kurt Steven PHILLIPS, Appellant, v. Claude Ivory McINTYRE, et al., Appellees.
• Docket Number: No. 9674,9674
• Decision Date: 12 December 1989

Page 261

783 S.W.2d 261

Kurt Steven PHILLIPS, Appellant, v. Claude Ivory McINTYRE, et al., Appellees.

No. 9674.

Court of Appeals of Texas,

Texarkana.

Dec. 12, 1989.

Appellee's Rehearing Overruled and

Appellant's Rehearing Granted in

Part Dec. 12, 1989.

Appellant's Rehearing Overruled

Jan. 3, 1990.

Clinard J. Hanby, Essmyer & Hanby, Houston, for appellant.

Leonard C. Kahn, Kahn & Maierson, Houston, for appellee McIntyre.

J. Preston Wrotenberry, Houston, for appellee Greater Houston Transp. Co d/b/a Yellow Cab Co. of Houston, Inc.

CORNELIUS, Chief Justice.

This is a suit by Kurt Phillips against Claude McIntyre, Yellow Cab Company, and others, seeking damages for personal injuries. Phillips was seriously injured when he and Gary Rich were shot by McIntyre during a confrontation after a traffic mishap involving a Yellow Cab driven by McIntyre and a car occupied by Rich and Phillips.

Phillips asserted liability against Yellow Cab Company on two theories: a Houston city ordinance which allegedly makes the cab company responsible for the torts of its drivers even if the drivers are independent contractors, and the cab company's primary negligence in failing to use reasonable care to see that its drivers did not carry handguns.

Trial was to a jury which found that the cab company, McIntyre, and Phillips were all negligent; their percentages of causation were sixteen percent, forty-two percent, and forty-two percent, respectively; that Phillips was not an employee of the cab company; that McIntyre was operating the cab at the time he shot Phillips and Rich; and that Phillips suffered damages of $3,077,500.00.

The trial court disregarded the jury's finding that McIntyre was operating the cab when the shooting occurred. That action had the effect of denying Phillips a recovery under the city ordinance, even if it would otherwise apply. The trial court also ruled, as a matter of law, that because the shooting was an intentional act on the part of McIntyre, the cab company's own negligence could not be a proximate cause of Phillips' injuries. ¹ A take-nothing judgment was rendered in Yellow Cab's favor. Phillips recovered against McIntyre. Only Phillips has appealed.

Phillips first asserts that judgment should have been rendered in his favor against the cab company because of the provisions of the Houston City Code governing taxicabs, and on the jury's finding that McIntyre was operating his cab when he fired the shots. We overrule this contention. We conclude that the city code does not impose absolute liability on the cab company for the torts of its drivers, and thus the jury finding that McIntyre was operating the taxi at the time of the occurrence is immaterial.

Phillips relies on various provisions of the city ordinance, but especially Section 46-17. It provides, in part, that:

Authorized operators.

No taxicab for which a permit has been issued ... shall be operated by anyone except the permittee or an employee of the permittee or other person who may be operating such vehicle under a written agreement specifically incorporating therein such rules, regulations and conditions as may be required by the director. The permittee shall be responsible for anyone operating under his permit .... Any person driving or operating a taxicab ... is presumed to be an employee of the permittee or to have entered into such written agreement.

(Emphasis added.)

Phillips contends that the provision that a permittee shall be responsible for anyone driving under his permit evidences an intention of the ordinance to impose strict liability on the permittee for the torts of the drivers. We disagree. Considering the ordinance as a whole, we construe Section 46-17 as regulatory only and not as imposing strict tort liability. The phrase "responsible for anyone operating under his permit" is used in the code, we believe, in the sense that certain persons are authorized to operate under someone else's permit, but when they are so authorized, the permittee remains responsible to see that those persons comply with the ordinance's regulations. The accuracy of this construction is bolstered, we think, by the fact that Section 46-17 is titled "Authorized operators," and the further fact that Section 46-17 also provides that any person driving a cab is presumed to be an employee of the permittee. If the purpose of the section was to impose tort liability, the provision presuming all drivers to be employees would be redundant.

Phillips argues that this construction of Section 46-17 is incorrect because another section, Section 46-72, specifically provides that permittees are responsible for drivers' compliance with the ordinance's regulations. We cannot agree. Section 46-72 applies to cases where a permittee transfers or assigns his permit.

We agree with Phillips, however, that there is some evidence that the cab company was itself negligent, and that its negligence was a proximate cause of Phillips' injuries. Thus, the court erred in disregarding the jury's answer to Question No. 1 and rendering a take-nothing judgment in Yellow Cab's favor.

Jury answers may be disregarded only if they are immaterial or have no support in the evidence. Tex.R.Civ.P. 301. Where the questions have support in the evidence, the trial judge may not render a judgment notwithstanding the verdict, even though the great weight and preponderance of the evidence might be to the contrary. Eubanks v. Winn, 420 S.W.2d 698 (Tex.1967).

To recover in a negligence action, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the duty was breached, and that damages to the plaintiff proximately resulted from the breach. El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987); Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985). Duty is the function of several interrelated factors, the dominant one being foreseeability of the risk. El Chico Corp. v. Poole, supra; Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex.1983). Whether or not a legal relationship or privity exists between the defendant and the plaintiff, if the circumstances are such that a reasonable, prudent person would recognize that the defendant's acts or omissions are likely to cause or contribute to another person being placed in danger, the duty to use ordinary care to avoid that danger arises. El Chico Corp. v. Poole, supra; Bennett v. Span Industries, Inc., 628 S.W.2d 470 (Tex.App.--Texarkana 1981, writ ref'd n.r.e.); Prosser and Keeton on the Law of Torts § 53, at 358 (5th ed.1984). Thus, the duty of care arises from the probability of injury to one who may reasonably be foreseen as likely to be subject to such injury. Carlisle v. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941); Bennett v. Span Industries, Inc., supra. Stated another way, if a person negligently creates or contributes to create a...