Story Services, Inc. v. Ramirez

• Decision Date: 25 August 1993
• Docket Number: No. 08-92-00320-CV,08-92-00320-CV
• Citation: 863 S.W.2d 491
• Parties: STORY SERVICES, INC., d/b/a Story Dodge, Appellant, v. Nestor RAMIREZ, Jr., Nestor Ramirez, Sr., Individually and as Administrator of the Estate of Gloria D. Ramirez, Deceased, and Luz H. Lira, Appellees.
• Court: Texas Court of Appeals

Page 491

863 S.W.2d 491

STORY SERVICES, INC., d/b/a Story Dodge, Appellant, v. Nestor RAMIREZ, Jr., Nestor Ramirez, Sr., Individually and as Administrator of the Estate of Gloria D Ramirez, Deceased, and Luz H. Lira, Appellees.

No. 08-92-00320-CV.

Court of Appeals of Texas El Paso.

Aug. 25, 1993.

Opinion Overruling Motion for

Rehearing Sept. 29, 1993.

Rehearing Overruled Nov. 3, 1993.

R. Brent Cooper, Michael W. Huddleston, Cowles & Thompson, Dallas, for appellant.

Douglas Gelo, El Paso, for appellees.

Before OSBORN, C.J., and BARAJAS and LARSEN, JJ.

OPINION

OSBORN, Chief Justice.

This appeal is from a judgment, based upon a jury verdict, awarding damages for personal injuries and a death resulting from a vehicle collision between a car driven by the Appellee, Nestor Ramirez, Jr., and a van owned by the Appellant. We reverse and render.

Facts

On July 25, 1989, Nestor Ramirez, Jr. was driving a vehicle in which his mother was a passenger. Their car was struck by a Dodge van which was traveling the wrong way on a one-way street at a high rate of speed. Mr. Ramirez received serious injuries and his mother received injuries which resulted in her death six days later. The van had been reported to the police as stolen from the Story Dodge sales lot about 9:10 p.m. the night before the accident. It was being driven by a person identified as Steven Watson who was arrested on a charge of involuntary manslaughter. He was not indicted for either theft or unauthorized use of the van.

Parties' Contentions on Taking Vehicle

There was a dispute as to when and how Watson obtained possession of the van. The Appellees argued the case before this Court on the theory that the van had been loaned out and left the sales lot with permission from Story Dodge. The Appellant contended throughout the trial and before this Court that the van had been stolen and that Watson did not have permission or consent from Story Dodge to drive the vehicle at any time.

Jury Verdict

By its verdict, the jury found (1) that Story Dodge negligently entrusted the van to Steven Watson, (2) that the negligence of Steven Watson proximately caused the occurrence in question, (3) that the acts or omissions of Story Dodge which resulted in the vehicle being driven from the premises were negligence, (4) that such negligence was a proximate cause of the occurrence in question, and (5) damages of Nestor Ramirez, Sr. resulting from the death of his wife, $60,000, (6) damages of Luz H. Lira resulting from the death of her mother, $25,000, (7) damages of Nestor Ramirez, Jr. resulting from the death of his mother, $17,000, (8) damages for Gloria Ramirez, $67,172.75 and, (9) damages of Nestor Ramirez, Jr. for his injuries, $97,000.

Finding of Negligent Entrustment

In the first two points of error, the Appellant contends that there is no evidence and insufficient evidence to support the jury's answer to Question No. 1 (negligent entrustment). In Williams v. Steves Industries, Inc., 699 S.W.2d 570 (Tex.1985), the Court said:

The elements of negligent entrustment are: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the occasion in question; and (5) that the driver's negligence proximately caused the accident.

699 S.W.2d at 571.

No question is raised about elements 4 and 5. Clearly, the driver was negligent and that negligence was a proximate cause of the accident. There are questions about the sufficiency of the evidence to establish the first three elements.

Standard of Review

In determining a "no evidence" point of error, we consider only the evidence and inferences which tend to support the verdict and disregard all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14 (Tex.1987); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In determining an "insufficient evidence" point of error, we consider all the evidence, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Review of Evidence

If we determine that the verdict is against the great weight and preponderance of the evidence, we must detail the evidence and the reasons which force that conclusion. Pool v. Ford Motor Co. The Appellees relied primarily upon two witnesses to prove that the vehicle left the Story Dodge sales lot with permission of the owner. First, Lorenzo Martinez testified that he had been employed with the El Paso Police Department for over sixteen years with more than seven years as a detective in auto theft. He was assigned on July 26 to investigate the van which had been reported as stolen the night before. He took a written statement from the sales manager which indicated the van had been noticed as missing as the lot was being closed on the evening of the 24th. No one saw the van when it was driven away. On the 28th, he inspected the wrecked van and it had the keys in the ignition with the key code ring. He said usually the key code ring, from which other keys can be made, is kept under lock and key in the dealer's office. The van had a dealer's tag which is used for demonstration purposes when a vehicle is driven off the lot. He talked to Steven Watson at the hospital and he denied having stolen the vehicle or having driven it. Watson told the detective he was living in Juarez. He said Watson had been arrested many times for auto theft and other types of thefts and fraud. When asked if the vehicle with the set of keys and key code ring and paper tag attached was initially driven with permission, he answered, "It's possible." He said the Department of Public Safety had no record of a driver's license for Steven Watson but acknowledged that no check was made for a license from Juarez, where Watson said he lived, or from New Mexico or California, where he had been arrested. On cross-examination, he said he did not know if Watson was licensed or unlicensed at the time. He also testified that his investigation never uncovered any evidence that this vehicle was anything but stolen, and that no evidence was ever uncovered that consent was given for anyone to drive this vehicle from Story Dodge.

The other principal witness was Alfredo Bonilla, a private investigator, who had worked for the Police Department for twenty-four years. He saw the van in the wrecker yard on July 31. Over objection, he testified that in his opinion, permission was given to take the vehicle from the car lot. This was based upon (1) the time the vehicle was reported stolen, (late in the evening which appeared that somebody was waiting for the vehicle to be returned), (2) the vehicle had demonstrator plates (which are used when a person has permission to drive a vehicle from the lot), and (3) the vehicle had keys and the coded key ring (which would normally have to be provided by sales personnel to a customer). He concluded that the vehicle had been loaned to Steven Watson.

The Appellees also put on evidence, by deposition or live testimony from seven witnesses who had worked for Story Dodge in July 1989. Gerald Hayes, the general manager, said the sales manager, Silver Zubia, learned the van was gone when he locked up for the evening. He said no one "turned it loose that day". He said the company had seven vehicles stolen in three years, three of which were taken while being driven by a sales person. Angelo Parker, a salesman, had no knowledge who took the van, but thought it had been missing on Saturday rather than Monday when it was reported to the police. Jeff Fargason, a salesman, saw the van on the lot on the 24th, but had no personal knowledge of how it came to be missing. Steve Brown, worked an early shift and was not on the lot at closing time. He knew the battery was dead in the afternoon and someone was looking for jumper cables. Argelia Jaurequi noticed the van missing between seven and eight o'clock on the evening of the 24th. She had shown the van to a customer on that date and the battery was dead. She got the keys and, using jumper cables to the next van, started the van and left it running to charge the battery. Her testimony was:

Q. What time would you guess that you showed the customer the car?

A. Right about between 7:00 and 8:00.

Q. And what did you do? You left the keys in the car, and then the car was driven off? Is that what happened?

A. Right.

She estimated that she left the van running from thirty to forty-five minutes before she noticed it was missing. The call to the police was about thirty minutes later.

William Boggs, Jr. worked the morning shift on the 24th and he remembered seeing the van that morning. He had no personal knowledge how the van was taken. He said most cars on the lot had paper tags on them.

Silverio Zubia, Jr. was the sales manager and he called the police to report the van stolen on July 24. He said all the vehicles had paper tags in order to demonstrate the vehicles. He saw the vehicle on Monday and said that nobody had loaned it out to a customer. He had no knowledge how the van was taken from the lot. He testified they would never loan a vehicle to a customer that was unlicensed.

There was also evidence that many cars are stolen in El Paso and most are immediately driven to Juarez. About 5,000 were stolen in 1989 and 5 percent of those were from dealerships. Very few of those are involved in an accident. Officer Conner could only recall two stolen vehicles being in accidents in the past year and a half.

Analysis

We conclude that the jury finding of negligent entrustment is in part against the great weight and preponderance of the evidence and clearly wrong and in part has no evidence to support the...