Republic Ins. Co. v. Bolton, 19492

• Decision Date: 23 March 1978
• Docket Number: No. 19492,19492
• Citation: 564 S.W.2d 440
• Parties: REPUBLIC INSURANCE COMPANY, Appellant, v. M. Dean BOLTON, Appellee.
• Court: Texas Court of Appeals

Page 440

564 S.W.2d 440

REPUBLIC INSURANCE COMPANY, Appellant, v. M. Dean BOLTON, Appellee.

No. 19492.

Court of Civil Appeals of Texas, Dallas.

March 23, 1978.

Rehearing Denied April 18, 1978.

Barry H. Fanning, Fanning & Harper, Dallas, for appellant.

Randy Taylor, Dallas, for appellee.

ROBERTSON, Justice.

M. Dean Bolton sued Republic Insurance Company, his insurer, for medical expenses and lost wages under the Personal Injury Protection (PIP) endorsement to his family automobile insurance policy. The injuries which formed the basis of Bolton's claim resulted from an accident which occurred while he was driving a modified Volkswagen, referred to as a "dune buggy," in an off-road race in Oklahoma. The sole disputed issue at trial was whether the dune buggy was a "motor vehicle" under the terms of the policy. ¹ This issue was submitted to a jury, which found that the dune buggy was a motor vehicle within the meaning of the policy. The trial court rendered judgment upon the verdict, and Republic now appeals. We affirm.

Republic's initial argument is that the issue of whether the dune buggy was a motor vehicle under the policy was a question of law which should not have been submitted for jury determination, and hence, that the jury's finding should be disregarded and judgment rendered against Bolton's claim. Alternatively, Republic urges that the jury's finding is against the great weight and preponderance of the evidence.

The only special issue submitted to the jury read as follows:

Do you find from a preponderance of the evidence that at the time and on the occasion in question the dune buggy driven by the plaintiff was a motor vehicle within the meaning of the policy?

"Motor vehicle" means an automobile and any other vehicle, including a trailer, operated or designed for operation upon a public road by any power other than animal or muscular power.

Republic argues that this issue erroneously submits a question of law, and that accordingly, the jury's answer thereto must be disregarded. We disagree. Although we recognize that issues which require a jury to pass on the legal effect of a written instrument, such as an insurance policy, are generally improper, Stuckey v. Union Mortgage & Investment Company, Inc.,383 S.W.2d 429, 439 (Tex.Civ.App. Tyler 1964, writ ref'd n. r. e.); Alamo Casualty Co. v. Trafton, 231 S.W.2d 474, 478 (Tex.Civ.App. San Antonio 1950, writ dism'd), this impropriety may be cured by an adequate explanatory instruction or definition. Rodman Supply Co. v. Parker, 363 S.W.2d 838, 842 (Tex.Civ.App. El Paso 1962, writ ref'd n. r. e.); Home Insurance Company of New York v. Young, 97 S.W.2d 360, 367 (Tex.Civ.App. Fort Worth 1936, writ dism'd). In the present case, the term "motor vehicle" was defined in precisely the same language used in the policy, ² and the jury was thus restricted to considering the facts of the case as they related to that particular definition. Under the submitted definition, the question of whether a vehicle is "operated or designed for operation upon a public road" must be determined by the facts of the case with respect to the character of the particular vehicle involved, and if the evidence permits opposing inferences to be drawn, a jury issue is presented.

We conclude that the evidence in this case raises a fact issue for the jury. Republic argues that no jury question is presented because the vehicle was used for racing on dirt or sand tracks, and was not driven on the public highways. It points to evidence showing that the vehicle could not have met state inspection standards because it lacked a proper muffler, turn signal lamps and other required equipment. It also had oversize rear tires and other special equipment designed for racing. The vehicle was not licensed in either Texas or Oklahoma, and it was towed, not driven, to the race in which Bolton was injured.

Bolton, however, testified that he assisted in building the vehicle, and that it was designed for driving on all types of terrain. According to his testimony, the dune buggy was comparable to a jeep, and it could be driven either on or off the road. Gordon Mayfield, the vehicle's owner, ³ stated in his deposition that dune...