soto v. seven seventeen HBE corp.

• Citation: 52 S.W.3d 201
• Decision Date: 12 October 2000
• Docket Number: No. 14-98-00920-CV,14-98-00920-CV
• Parties: <!--52 S.W.3d 201 (Tex.App.-Houston 2000) GRISELDA SOTO, INDIVIDUALLY AND AS NEXT FRIEND OF MATTHEW JOEL SOTO, A MINOR, Appellant V. SEVEN SEVENTEEN HBE CORPORATION, D/B/A ADAM'S MARK HOTEL ET AL., Appellee Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 201

52 S.W.3d 201 (Tex.App.-Houston [14th Dist.] 2000)

GRISELDA SOTO, INDIVIDUALLY AND AS NEXT FRIEND OF MATTHEW JOEL SOTO, A MINOR, Appellant

V.

SEVEN SEVENTEEN HBE CORPORATION, D/B/A ADAM'S MARK HOTEL ET AL., Appellee

No. 14-98-00920-CV

Court of Appeals of Texas, Houston (14th Dist.).

October 12, 2000.

On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 95-17859

[Copyrighted Material Omitted] Panel consists of Justices Sears, Cannon, and Hutson-Dunn.^*

O P I N I O N

Ross A. Sears, Justice (Assigned).

Appellant sued Servando Luna and his employer, appellee, for injuries to their minor child caused by the negligence of Luna. Luna went to Mexico and did not participate in the trial. The jury found Luna was negligent, but also found he was not acting within the course and scope of his employment. Thus, appellee, Seven Seventeen HBE Corporation d/b/a Adam's Mark Hotel, was not responsible for Luna's negligence. Appellant challenges this jury finding. We affirm.

I

Servando Luna was a housekeeper for Adam's Mark Hotel. When he arrived each day, he was given keys to enable him to check the bathrooms and open storage cabinets. At the end of his shift, he was to return the keys. On the day of the incident, Luna left work and forgot to return the keys. When he realized he had them, Luna drove his brother's truck back to the hotel and dropped off the keys. Luna had no drivers license and driving an automobile was not part of his job duties. On his return trip home from the hotel, Luna ran over and seriously injured Matthew Soto. As a result of this incident, Matthew suffered multiple fractures and a closed head injury. Matthew is permanently brain damaged and is now a special education student.

After a three day trial, a jury found that Luna's negligence proximately caused Soto's injuries, but also found that Luna was not acting in the scope of his employment when Soto's injuries occurred. The jury found Soto's actual damages totaled $7,700,000.00 and the trial court entered a judgment for this amount against Luna, plus pre-judgment and post-judgment interest. The trial judge also awarded a take nothing judgment in favor of Adam's Mark.

II

Soto appeals the jury's verdict and argues Luna was within the course and scope of his employment as a matter of law or, alternatively, the verdict is against the great weight and preponderance of the evidence. An appellant attacking the legal sufficiency of an adverse jury finding, on which he had the burden of proof, must overcome two hurdles. First, the record must be examined for evidence supporting the jury's finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the fact finder's answer, only then will we review the entire record to assess whether the contrary proposition was established as a matter of law. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex. 1991); Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982); Smith v. Central Freight Lines, Inc., 774 S.W.2d 411, 412 (Tex. App.-Houston [14th Dist.] 1989, writ denied).

In reviewing a challenge that a jury finding is against the great weight and preponderance of the evidence, we consider all of the evidence in determining whether the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1952). We may reverse and remand for a new trial if we conclude the jury's nonfinding is against the great weight and preponderance of the evidence. See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988).

In reviewing this issue, we note the jury, after hearing all the evidence, was not convinced by a preponderance of the evidence that Luna was acting in the scope of his employment when the accident occurred. See C&R Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex. 1966); Grenwelge v. Shamrock Reconstructors, Inc., 705 S.W.2d 693, 694 (Tex. 1986).

Both of these standards of review prevent the intentional or inadvertent invasion of the jury's province as the factfinder. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796-97 (Tex. 1951). The jury is the exclusive judge of the facts and the credibility of the witnesses. See id. We cannot substitute our judgment for that of the jury nor review the witnesses' credibility. See id.; see also Jones v. Williams, 41 Tex. 390 (1874).

III.

Sufficiency of the evidence must be reviewed using the definitions and instructions contained in an unobjected-to jury charge. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985); Allen v. American Nat'l Ins. Co., 380 S.W.2d 604, 609 (Tex. 1964). Although the parties differ as to the status of objections filed against the charge, the scope-of-employment definitions contained in the charge were those that were requested by appellant. Thus, we will examine the evidence using Soto's definition and instructions to determine whether the evidence supports the jurys' finding that Luna was not within the scope of his employment when the incident occurred.

The scope of employment question submitted to the jury is as follows:

On the occasion in question, was Servando Luna acting in the scope of his employment?

An "employee" is acting within the scope of his employment if he is acting in the furtherance of the business of his employer.

An "employee" is not acting within the scope of his employment if he departs from the furtherance of the employer's business for a purpose of his own not connected with his employment and has not returned to the place of departure or to a place he is required to be in the performance of his duties.

However, even an employee who departs from the scope of his employment temporarily may be engaged in a special mission for the employer. A "special mission" occurs when an employee is traveling from his home or returning to it on a special errand either as part of her regular duties or at the specific order or request of his employer. When an employee has undertaken a special mission or is otherwise performing a service in furtherance of the employer's business with the express or implied approval of the employer, the employee is acting in the scope of his employment.

Answer "Yes" or "No."

Answer: NO

Generally, an employee is not in the course and scope of his employment while driving his own vehicle to and from his place of work. See Kennedy v. American Nat'l Ins. Co., 130 Tex. 155, 107 S.W.2d 364 (1937); Mata v. Andrews Transp., Inc., 900 S.W.2d 363, 366 (Tex. App.--Houston [14th Dist.] 1995, no writ). This rule is based on the premise that an injury occurring while traveling to and from work is caused by risks and hazards incident to driving on public streets, which has nothing to do with the risks and hazards emanating from a person's employment. See also Smith v. Texas Employers' Ins. Assn., 129 Tex. 573, 105 S.W.2d 192, 193 (1937).

It should also be noted that at oral submission, appellant waived her claim that the action was solely a "special mission." However, we will nonetheless address that issue.

One exception to the "to and from" rule is if an employee has undertaken a special mission at the employer's direction, or is otherwise performing a service in furtherance of the employer's business with the express or implied approval of the employer. See Chevron, USA, Inc. v. Lee, 847 S.W.2d 354, 355-56 (Tex. App.--El Paso 1993, no writ). Regarding an employer's implied approval, the Texas Supreme Court stated the following:

[I]f an employee, with the knowledge and assent of the employer, repeatedly uses an automobile, not owned by the employer, in the latter's business, the employer will be held to have impliedly authorized its use and to be liable for negligence in connection therewith, but the mere fact that an automobile was used on one occasion, unaccompanied by any evidence of other similar acts, does not justify any inference that the employee was later authorized to use the machine upon the employer's business. The employer is not liable where the use of the automobile or other vehicle operated by the employee is not expressly or impliedly authorized by the employer, and he exercises no control over its operation. He cannot be held liable under the doctrine of respondeat superior for personal injuries inflicted by an employee while engaged in unnecessarily driving his own automobile upon the master's business, without the latter's knowledge or express or implied authorization.

Kennedy, 130 Tex. 155, 107 S.W.2d at 366 (emphasis added).

"A special mission is a specific errand that an employee performs for his employer, either as part of his duties or at his employer's request." Upton v. Gensco, Inc., 962 S.W.2d 620, 621-22 (Tex. App.--Fort Worth 1997, pet. denied). The special mission involves work or work-related activity apart from the employee's regular job duties. See id. An employee is not engaged "in furtherance of the employer's business," i.e., not engaged in a special mission, when the employer neither requires any particular means of travel nor directs the employee to take a particular route. Upton, 962 S.W.2d at 622; see Brown v. American Racing Equipment, Inc., 933 S.W.2d 734, 736 (Tex. App.--San Antonio 1996, no writ); J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 637 (Tex. App.--San Antonio 1993, no writ); Wilson v. H. E. Butt Grocery Co., 758 S.W.2d 904, 907-08 (Tex. App.--Corpus Christi 1988, no writ); American Nat'l Ins. Co. v. O'Neal, 107 S.W.2d 927, 927-28 (Tex. Civ. App.--San Antonio 1937, no writ).

Additionally, "[a]n employee must be under the control of the employer or acting in furtherance of the employer's business to be on any such 'special mission.' " Chevron, 847 S.W.2d at 356. "If found to be on a special mission, the employee will be considered to be in the course and scope of his employment from the time that the employee...