Webster v. Lipsey

• Decision Date: 08 February 1990
• Docket Number: No. C14-88-00552-CV,C14-88-00552-CV
• Citation: 787 S.W.2d 631
• Court: Texas Court of Appeals
• Parties: Sonya Renee WEBSTER, Appellant and Appellee, v. Waldine LIPSEY, Appellee and Appellant. (14th Dist.)

Page 631

787 S.W.2d 631

Sonya Renee WEBSTER, Appellant and Appellee, v. Waldine LIPSEY, Appellee and Appellant.

No. C14-88-00552-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Feb. 8, 1990.

Rehearing Denied March 1, 1990.

Joseph D. Jamail, W. James Kronzer, Houston, William W. Kilgarlin, Austin, for appellant and appellee.

Michael S. Goldberg, Patrick Zummo, Daniel O. Goforth, Houston, Wayne H. Prescott, Austin, for appellee and appellant.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

PAUL PRESSLER, Justice.

A negligence and products liability case involving a Honda three-wheeled all-terrain cycle (ATC) was brought by appellant Webster. We affirm the trial court's judgment.

On November 24, 1984, Sonya Renee Webster (Renee) was a passenger on an ATC driven by William Lipsey (William), a high school classmate. The ATC turned over and Renee was seriously injured. She originally filed suit against the manufacturer and distributors of the ATC, Honda Motor Co., Ltd.; American Honda Motor Co., Inc.; Honda R & D Co., Ltd.; and Meador-Brady Management Corp. d/b/a Pasadena Honda, (collectively referred to as "the Honda defendants") and against Waldine Lipsey, William's mother. Shortly before trial, the Honda defendants joined William as a third-party defendant. At that time, the statute of limitations barred Renee from suing William.

On February 29, 1988, Renee and Mrs. Lipsey "by her insurance carriers" entered into an agreement that Mrs. Lipsey's insurance policies would provide coverage of up to $9.3 million to William if the jury found that his negligence was the sole cause of the accident. In return, Renee agreed to pursue the case against the Honda defendants, "there being no doubt that the evidence clearly establishes that Honda is the only cause of this occurrence and the injuries and damages to Sonya Renee Webster and her family." On March 7, 1988, Renee entered into a Mary Carter settlement agreement with the Honda defendants which guaranteed her a $7.5 million payment.

The case was tried to a jury. The jury found that the ATC was defective and that William Lipsey had been negligent and apportioned ninety-five percent causation to the ATC and five percent to William. The jury awarded $16,597,602 in damages which the trial court apportioned as follows: $15,767,721.90 against the Honda defendants and $829,880.10 against Mrs. Lipsey on an agency theory. The judgment also incorporated the terms of the Mary Carter agreement and reduced the Honda defendants' liability to the $7.5 million guarantee. Both sides appeal the judgment.

Mrs. Lipsey appeals on seven points of error. In point of error one, she complains that Question No. 1 concerning agency failed to state a necessary element. That question asked the following:

On the occasion in question was William Lipsey operating the ATC in furtherance of a mission which was in whole or in part for the benefit of Waldine Lipsey?

You are instructed that William Lipsey was acting in furtherance of such a mission if, at the time of the incident in question, one of his purposes in riding the ATC was for the business welfare of the Lipsey family.

The parties agree than an essential element of proof of agency is that the alleged principal has the right to assign the agent's task and to control the means and details of the process by which the agent will accomplish the task. Johnson v. Owens, 629 S.W.2d 873, 875 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.). According to the Texas Pattern Jury Charge, if the right to control the details of the mission is undisputed, language concerning control may be omitted from the agency question. 1 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC 6.10 (1987). Mrs. Lipsey contends, however, that control was disputed in this case and that Question No. 1 should have asked whether William's operation of the three-wheeler was subject to her control as to the details of the mission. Renee argues to the contrary that Mrs. Lipsey's control was established as a matter of law, making the submission of that additional element unnecessary. Renee asserts in a cross point that the trial court erred in overruling her motion for a partial directed verdict on the issue of agency because the evidence conclusively established an agency relationship between Mrs. Lipsey and her son.

On the day of the accident, William had invited Renee to the family's ranch to ride horseback. The plan was to move some cattle from one field to another and then go riding. William was transporting Renee to the barn on the ATC. Mrs. Lipsey asserts in her brief that she did not control the details of William's work on the ranch and, in fact, did not know that William intended to use the three-wheeler on that day or that Renee would be a passenger.

Mrs. Lipsey testified that following her husband's death in 1982, she took over the "whole responsibility" of the ranch with the help of her two sons. She let the boys take care of the outside to the extent that "[t]hey'd find out what had to be done, they'd come and ask me and, if I agreed, we agreed together." She concurred that she had the final decision-making power. Mrs. Lipsey also agreed that she was in charge of the use of the ATCs after her husband's death. When the Lipseys first owned them, they were used primarily for recreational purposes. Later they were used in the operation of the ranch, primarily for getting the horses. William could use the ATC at any time without asking her permission; yet he would have obeyed her had she told him he could not drive it. At the time of the accident Mrs. Lipsey knew what the boys and Renee were doing although she thought they were all driving to the barn in the Jeep. Had she seen Renee get on the ATC, she probably would have suggested they instead take the Jeep. William and his brother Scott testified that they ran the outside work while their mother took care of the book work. However, they both agreed that if Mrs. Lipsey told them to do something, they would do it.

The test here is the right to control. Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex.1964). It is clear that while William and Scott were allowed a great deal of input into the operation of the ranch, they deferred to their mother as the ultimate authority. Had she told William not to perform a chore in the company of a guest or not to ride the ATC with Renee as a passenger, he would have obeyed her. Therefore, it is undisputed that Mrs. Lipsey had the right to control the details of William's mission whether or not she actually exercised it. Under the dictates of the Texas Pattern Jury Charge, Question No. 1 did not fail to state a necessary element of agency, and point of error one is overruled. In light of this ruling, there is no need to rule on Renee's cross point.

In point of error two, the argument is made that the trial court erred by refusing to dismiss Renee's cause of action against Mrs. Lipsey as Renee had previously agreed and admitted that the Honda defendants were the only cause of her injuries. At issue here is the February 29, 1988, agreement between Renee and Mrs. Lipsey and her insurance carriers, which read in pertinent part:

In the highly unlikely event that the jury finds that William Lipsey was negligent and that such negligence was the sole cause of this tragic accident, the insurance companies for Waldine Lipsey agree that Waldine Lipsey's policies of insurance will provide insurance coverage to William Lipsey just as if he was a party defendant to this lawsuit. The total amount of insurance available is $9,300,000.00.

In consideration of the foregoing, Joseph D. Jamail, agrees on behalf of all the plaintiffs to actively pursue and prosecute his clients' case against the Honda defendants, there being no doubt that the evidence clearly establishes that Honda is the only cause of this occurrence and the injuries and damages to Sonya Renee Webster and her family. Jamail by necessity will continue to keep Mrs. Lipsey in as party defendant so that the jury may assess the evidence. Joseph D. Jamail, on behalf of the plaintiffs, agrees that the plaintiffs will try their case in a manner consistent with the placing of responsibility upon the Honda defendants, where it so obviously belongs. All of the foregoing is consistent with the facts and with the manner in which the cause has been prosecuted to date.

This agreement cannot be used in evidence for any purpose, nor alluded to during this trial.

Mrs. Lipsey argues that the agreement was a judicial admission by Renee that the Honda defendants were the only cause of the accident; that the agreement contractually estopped Renee from pursuing any cause of action against Mrs. Lipsey; that Renee was equitably estopped from taking a position at trial contrary to the agreement; and that Renee waived her right to prosecute claims against the Lipseys.

The February 29th agreement could not serve as a basis for dismissing the cause of action against Mrs. Lipsey. The parties clearly agreed to leave Mrs. Lipsey as a defendant. The agreement was not a judicial admission. A judicial admission is a formal act, done in the course of judicial proceedings, which dispenses with the production of evidence and takes the matter out of the domain of proof. It is not evidence but is a substitute for evidence. Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 719 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.). The document at hand specifically provided that it was not to be used in evidence for any purpose. Such a statement would negate its being used as a substitute for evidence as well. Furthermore, to qualify as a judicial admission, the statement must be unequivocal. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.--San Antonio 1951, writ ref'd). In this agreement, Renee protected herself by retaining the right to submit all of the evidence to the jury. This is not an unequivocal...