Hughes Drilling Fluids, Inc. v. Eubanks

error, In their first PRESSLER, Before PAUL SEARS refusing assert that the trial court erred CANNON, JJ. special inquiring to submit issues whether operating Eubanks was while vehicle intoxicating liquor under the influence of OPINION so, and, if proxi- whether such action was a CANNON, Justice. support mate cause the incident. Hughes Company Hughes Tool Drill- argument, appellants rely on rule Fluids, Inc., ing a division of Tool Murray Express, v. & A O Company, (appellants) appeal judg- from a (Tex.1982): “The vi- S.W.2d 633 unexcused $6,707,780 ment for negli- rendered penal olation statute constitutes personal points suit. In six of gence if statute as a matter law such appellants challenge injuries the trial court’s designed prevent to a class special injured party persons refusal to submit issues on intoxi- of to which the be- cation; Id. special longs.” Appellants argue its submission of issues plaintiff conclusively Donald Eubanks’ two the evidence admitted at trial jury, by the or trier considered that Eubanks drunk established facts, determining or not therefore, whether and, in viola- of the accident time guilty of contrib- person of some act driving intoxicated stat- tion of while the fact of intoxi- utory negligence, but Act of June ch. ute. § the de- would not convict cation alone amended 1979 Tex.Gen.Laws negligence. 16, 1983, 303, 3, ceased ch. by Act of June § Further, 1568, 1574-77. as Tex.Gen.Laws Id. at 798. obviously safety highway is this statute by appellants cited In most of the cases designed prevent to measure and is negligence per argu- support in of their se Eubanks, by his type of sustained negli- ment, there evidence of considered of this statute must be violation of to the conduct gent conduct addition Thus, negligence per appellants se. Thus, driving intoxicated.1 there was while have clude, the court should allowed below which, contributing in combi- factor some intoxi- special issues on the matter of their intoxication, caused nation with not proximate cause. We are cation and to be “at fault.” by arguments. persuaded Here, no we find application that their Appellants concede any by Eu- indicates that act record which present to the fact Murray rule banks, alleged regardless of his intoxi accepted by all Tex- has not been situation cation, to cause the accident contributed While several Texas courts of as courts. resulting injuries. his Witness Harold agreed appellants’ argu- appeal have Hart, sitting intersection, in his van at driving ment, other courts have held that speeding Eubanks was neither stated that se; negligence per intoxicated not while erratically truck in driving nor and had his instead, regard an they intoxication as evi- witness, Bond, Jim his own lane. Another by dentiary matter be considered highway, also on the following Eubanks making ultimate determina- jury when its speeding not that Eubanks was testified parly. of tion nothing improper to cause the acci and did testified, jury so and the dent. Both men Wilson, v. 150 Tex. Benoit found, move over truck’s (1951), cited as authori- is often half line into Eubank’s the center ty in cases which view intoxication as those No one precipitating factor. road was the evidentiary argue an issue. turn to seriously that Eubanks’ contended it is inapplicable Benoit because improper right the truck was to avoid driving negligence per neither a se nor a evi summary, there was no In conduct. however, note, intoxicated while case. We driving was dence to indicate that Eubanks’ does relevant lan- that Benoit contain drinking. his affected guage: alone, intoxication, standing drinking Evidence of recognize that we While proxi- condoned, negligence or de driving does not establish we is not to be rule must be evidence and fast which adoption mate cause. There of a hard cline establish, drinks and is involved other misconduct sufficient one who holds that evidence, negligent per se. by preponderance of the is to held an accident (1953)(discussing performing L.Rev. 592 person guilty 31 Texas See act, submitting to a intoxication act, method of failing perform or some some inequitable rule would be ordinarily prudent person jury). Such a an which is no one where there like this Evidence a situation performed.... have would Eubanks, any notwith- act evidentiary fact to be is an intoxication crossing); Co. v. Breweries, grade Motor Ford Naylor, a railroad Inc. v. 1. Galveston — Houston 688 S.W.2d (Tex.Civ.App. 249 S.W.2d 262 Pool — Texarkana — Galveston 1985), part, 715 S.W.2d part n.r.e.) (failure proper and rev’d in keep a look refd writ aff'd (Tex.1986) (excessive speed); control); v. Her Castro proper automobile under out and have nandez-Davila, (Tex.App Railway, Flanigan & Texas . —Cor Pacific writ) (failure to control pus refd Christi (Tex.Civ.App. Paso — El brakes). apply n.r.e.) (faitee and to proceeding vehicle stop across before standing alleged intoxication, contribut- court’s role to create new cause of action. inju- ed cause Consequently, the court chose to leave the ries. Point error one is legislature Supreme overruled. decision to the or the Bennight, Court. 670 S.W.2d at 379-80. In two, argue submitting erred compelled This court to follow special inquiring issues as damages to the Bennight and Jannette. toowe of Eric and Sean (i) because feel the decision to right extend the law, matter neither is entitled to recov- legisla in these cases lies with the ery damages case, (ii) in this if even or ture Court. Until one entitled, they so special issues body the other mandates cause of action incorrectly state the elements of parental consortium, for loss of we adhere which would be entitled. Eric and law, present which allows no such Sean Eubanks are the minor sons Don- Therefore, recovery. the award of dam ald Eubanks. Issues Nos. ages appellees is reformed delete the was asked to consider the $1,000,000 ($500,000 each) award to Eric following awarding elements of and Sean Eubanks. care, compensation: loss of father’s ruling, of view this dowe not discuss maintenance, services, education, support, appellants’ argument regarding word- past advice and counsel both in and ing of Special Issues Nos. 10 and 11. future. Appellants next find error in trial Appellants present state that under Tex overruling court’s of their motion for new law, Eric and Sean do have an inde not newly trial based on discovered evidence. pendent party action a third tort- Appellants argue this evidence was Ap- parental feasor for loss of consortium. entry cealed until after the trial of pellees, hand, urge on the other court judgment. they After trial received recognize such cause ac of action in anonymous through information an tele- Supreme cord with recent Court decisions phone call that Donald had rela- spousal recognizing consortium and allow living in County tives Harris whom he had ing recovery wrongful under death deposition questions. in reply not named companionship statute for loss of and men relatives, stepsister Two of and her those anguish for tal the death of minor child husband, hearing testified parent. Whittlesey Miller, or v. they present motion for new that were trial (Tex.1978); S.W.2d 665 Sanchez v. Schin Eubanks’ to the accident work-site dler, (Tex.1983); 651 S.W.2d 249 Cavnar v. and, further, quantity of testified as to the Quality Parking, Control he alcohol he consumed before left They home. Eubanks’ fa- stated that ther, Eubanks, Royce them there told Two de appellate recently courts have sec- A were witnesses accident. nied because causes of action for Royce stepsister’s ond testified husband parental loss consortium and/or loss Eu- Eubanks told him that after Donald companionship a child are not al discharged hospital, from banks was lowed under the laws this state. Ben his scene and and wife went to Co., night Supply v. Auto Western trucks, days, watching sat there for several (Tex.App. S.W.2d — Austin then one that fre- chose as defendant n.r.e.); Deprez, ref d v. writ Jannette point. passed quently that — Dallas n.r.e.). Bennight d admitted Appellants ref The that evidence sat assert granting trial theirs was a difficult conclusion rules a new isfies the set pointed newly but out that a cause of action evidence as reach based discovered parental re v. for loss “would Court Jackson consortium forth (Tex. Winkle, quire adjustment several established Van 1983). must seeking new trial legal Moreover, stat principles.” the court has satisfy appellate ed it is not the court an intermediate argue that because trial; knowledge his since the come discovering this evi from prevented owing not to the want due dil it was deposition testimony sooner; the false dence igence it that it did not come party, that the evidence the fact an cumulative; adverse it so material is not and that impeaching merely cumulative will produce a probably different that would granting of a motion for new prevent the granted. The if a new trial were result Winder, 130 S.W.2d trial. Steed reviewing court’s ac standard 1939, no (Tex.Civ.App. 404-05 it constituted an abuse whether tion — Galveston reading of Eu- a fair writ). Therefore, we review Id. discretion. testimony not neces does deposition banks’ it met to see if newly discovered concealment. When sarily substantiate decide and to whether the test Jackson living in Har any relatives if he had asked an abuse of discretion. its exclusion stepmother’s County, ris he did disclose stepsister Also, testimony questioning about name. when drinking adds as to Eubanks’ the acci her husband at the work-site before else was dent, initially aske little in the face trial counsel appellants’ d ap percent content was .235 did not make it employees blood alcohol fellow about proximately subsequent questions two hours after the accident clear that percent hours later. anyone some three asking .173 else other than about fellow pre intoxication Giving every that this state defines reasonable Given employees. purposes as an alcohol concen order for criminal of the trial court’s sumption favor more, trial, of .10 or Tex.Rev.Civ.Stat. abuse of refusing tration find no a new we (Vernon 6701Z-l(a)(2)(B) Supp. ruling. Ann. art. court’s in the lower discretion regard Thus, 1986), ample jury had evidence 809-10. Jackson, 660 S.W.2d This ing state of intoxication. point Eubanks’ three is overruled. newly evidence was so mate discovered point of error Appellant's fourth produce a different result were a rial as to admit cer- the trial court’s refusal to cerns granted. new trial officer, investigating testimony of the tain on Welsh testified Norman Welsh. Officer newly discovered evidence following: exception to the bill Royce Eubanks said there were witness High- my I moved car around After appellees con es to the accident and that shoulder, I parked on the way it story identity of the as to the cocted immediately my car and was got out truck is somewhat troublesome. me by a man that advised approached it to the standard we find that does not rise accident although he did not see the trial should be of evidence which new pickup red occur, he witnessed First, granted. may as characterized before on just moments involved was evidence, justifi impeachment is not which driving traveling Highway westbound Amsterdam, for a new trial. New cation it, Which, erratically. as he described Jordan, Casualty Co. v. high rate cars at a passing several was (Tex.1962) Gulf, (quoting C. Conwill on at least one occasion speed, and 96, 19 Ry., 85 Tex. S.W. & S.F. pickup left of the lefthand wheels (1892)). Appellants’ counsel admitted roadway. of the left side hearing had had this then was diverted Welsh’s attention Officer testified, Royce he would when investigate by direct traffic and the need to Second, it. interrogated him about have again for he looked accident. When the sense cumulative gone. witness, man was this testimony at trial there was considerable testimony truck, Appellants offered identity concerning the 803(2) Rules of of the Texas under Rule testimony afforded the sufficient Evidence, which is the “excited utterance” opportunity question both the witnesses’ 803(2) hearsay Rule exception rule. mo identify truck and their ability to as a statement defines an excited utterance tives. relating startling to a heavy event condition fog. Only the Sullivan accident was made while declarant was under the similar to the Eubanks accident in that by stress of excitement caused the event or Sullivan right swerved to the to avoid an condition. We hold that the unidentified vehicle, unidentified lost control and hit the man’s statement was not as an admissible ditch. Again, alcohol was not a factor excited utterance that the trial court that accident. did refusing not abuse its discretion in reports contained in Defendants’ Ex- admit it. The man not witnessed the hibit 54 bear even fewer similarities. Five accident, and say actually what he had to of the accidents ap- involved two vehicles alleged related to a event—the erratic proaching one another a manner other driving. Although approached this man than from the east and west immediately the officer upon the latter’s (Franklin, Nuncio, Stokes, Maness, Tro- (approximately arrival twenty minutes af linger). A during sixth accident occurred accident, ter according to the officer’s day when one car to turn slowed left estimate), there is no evidence that he was highway off hit was a car calm; therefore, anything but there nowas going the way. reports Three required “stress of excitement” concerned one-car involving accidents east- exception. See Southwestern Bell Tele (Shockley, vehicles bound Arceneaux and phone v. Griffith, Co. 102-03 Walker) speeding, which was one ( —one Tex.Civ.App. Corpus Christi — trying right of which turn onto n.r.e.). Furthermore, ref’d there was evi another road and one which missed dence there pickups were two red Finally, accident, Lakey curve. while accident; vicinity without the alcohol, except similar for the absence of identity, impossible man’s it is clarify nothing adds to appellants’ cause. which driving truck was erratically. This part of Officer Welsh’s We conclude that there not suf excluded, properly point of error four similarity permit ficient evidence of is overruled. reports admission these into error five maintain evidence. While the sheer number of these refusing court erred reports dangerous proves this is a section admit evidence of other accidents at the 90, prove Highway nothing more. They scene Eubanks accident. ar Moreover, showing there is no harm to gue these accidents occurred un appellants ample because the heard reasonably der similar circumstances and evidence of Eubanks’ intoxication and the were relevant to the issue of whether Eu- conditions at the scene and accident thus banks’ intoxication was a cause of acci apprised in fully was of both without the dent. Evidence of earlier accidents which reports. troduction the accident See reasonably occurred under similar but not Holder, Light Texas & Co. 385 Power necessarily identical circumstances is ad 873, 889 (Tex.Civ.App. Tyler S.W.2d — missible. Missouri-Kansas-Texas Rail 1964), per curiam, n.r.e. 393 refd 755, (Tex. May, road v. point of S.W.2d 821 The fifth 1980). error is overruled. Defendants’ Exhibit 53 included six one- response Finally, in Is involving car reports accident westbound 1, 2, 4, jury found Nos. 3 and Sullivan, Carrier, sues Venable, drivers named Hughes Drilling Fluids driver of a truck Scott, a Only Rosser and Inman. two certain acts and that (Venable Carrier) committed reports those and in- proximate a cause such was speeding volved alcohol. on Venable was a point Appellants argue foggy night, the accident. while Carrier lost control and findings against are road, error six these ending up opposite crossed the in the great weight preponderance ditch. and speeding, Scott and Rosser jury’s during and Rosser’s conclusion accident occurred evidence because Drilling day. during Hughes Inman’s track involved a accident occurred great logos. Spo- against colors in their John Fluids truck is also same weight preponderance rar, manager production and of the evidence. services challenge Specifically, Fluids, the testi- Hughes Drilling testified that ac- mony Bond Hart of witnesses records, cording company there were conditions, grounds poor dark their Hughes that time. trucks that road at vantage points, and inconsistent testi- a driver he testified that addition, they point to the evi- mony. In Liberty, in the direction of carrying a load prove tending at trial presented dence to choose or Louisiana allowed Kountze Hughes been at truck could have that no Highway 10 or his route —Interstate question. scene at time in the accident past the driver route would take latter considering sufficiency of In a factual of the accident. the scene error, we consider and Mr. During appellees’ examination of weigh and set all the evidence the case Sporar, questioned him about counsel the verdict remand the cause aside delivery truck ticket dated December the evidence if conclude that new trial we Hughes showing employee, that a finding or that support too weak to Rist, plant Hughes left the on Shel- Warren great weight finding is so p.m., hauling palletized don at 6:00 Road as to be preponderance on a bobtail material Kountze sack Estate, manifestly unjust. King’s re (Hart eigh- truck. and Bond identified (1951); 662, 244 150 Tex. S.W.2d carrier, how- as bulk tank teen-wheeler Homes, Cooper, Inc. v. Precision ever; gooseneck the bobtail truck carries [14th — Houston trailer.) plant approximately ten n.r.e.). d writ ref Dist.] site; therefore, had miles from the identify could not Donald Eubanks have Highway he Rist would taken him off the road. Two truck that forced and 6:30. between 6:15 been at scene eyewitnesses identified it Cream, Hart Testimony from Mr. Mrs. Hart, Drilling Fluids truck. Harold occurring accident as and Bond timed the Crosby- stopped at the intersection of Officer anywhere 6:15 and 6:50. between Dayton testified Road dispatcher at got call from his Welsh headlights that he had his on and saw got 7:12, one attendant and the ambulance Hughes logo he on the trailer and that was arrived dispatcher at 7:19. Rist from her fre- logo because of his familiar with p.m., which is in Kountze at 8:00 quent Highway 90. Bettie Sue travels on further and a little by Highway miles Cream, near the intersection who lived testified that drove 10. Rist Interstate accident, help identi- went out after the day, on Interstate 10 the truck having fied Hart as been at the scene. Jim mileage delivery ticket on his listed his Bond, on the following Eubanks who was for longer works miles. He no highway, (by deposition) also testified that his brother- Hughes, he does live with but “Hughes Drilling on the saw Fluids” manager. in-law, who is a passed it him. Neither witness truck as Officer at the scene to talk to province remained of the trier As is the sole it however, Welsh; left his card with weight Bond to credibility and judge the fact to in Eu- note he had seen the accident that testimony given to resolve the and be contacted pocket, and Hart later banks’ Homes, Inc., it, flicts Precision hospital. at the Eubanks 929, this jury to the had evaluate S.W.2d the testimony, in relation to particularly testimony with countered testimony. expert the other exhibits and vision, ques- night expert that of an findings of say jury’s the cannot We lettering on the ability to see tioned Hart’s in this case proximate cause negligence and and given lighting conditions the truck the weight prepon- against great and the are so pointed viewing angle. Appellants the manifestly evidence as to be derance of the companies, whose out that other several overruled. of error six is 90, unjust. Point use frequently travel trucks judgment We affirm the panionship society and parent. of a To find regarding court with the modifications the such a distinction would discriminatory damages to Eric and Sean Eubanks. to child. The Appeals Austin Court recently to declined allow a child’s cause of SEARS, Justice, dissenting on motion for for injuries mother, action to stating her rehearing. that it was not role of an intermediate appellate Rehearing On Motion for I am convinced create a new cause of I in joining erred in the action. original opin- the court did acknowl edge ion. the incongruity allowing certain family members, others, but not to recover In response Issues Nos. and substantially for the same harm suffered $500,000 jury awarded mi- to each by each. Bennight Sup v. Western Auto parental nor child for the loss consor- Co., ply 670 S.W.2d (Tex.App. 379-80 original tium. The opinion held under n.r.e.). —Austin writ ref’d In that present law, Texas Eric and cannot Sean case, the husband’s loss of consortium was party recover a third for tortfeasor compensable; us, in the case before opinion loss. then reformed the damages wife was awarded for loss of con judgment $1,000,000 to delete the I award. Arguably, sortium. a child’s loss is even opinion concur original with the with more severe spouse par than that of exception of $1,000,000 the reversal of the ent as the child much more vulnerable award, respectfully I dissent toas dependent upon care, parent portion opinion. comfort, advice, guidance society. This only taking court’s rationale for upon trial, Based away at this damages awarded to Eric and found Eric Sean is that Texas does provide law Sean damages. resulting argue does, injuries such I each have sustained would from alternative, not, or in that if accident that rendered father it does paraplegic. then time recognize difficulty has come to such The father has condition, adjusting cause of action in the State of relation- Texas. ship family and interaction with his has Court that a held any deteriorated. He from withdraws spouse has a action cause of for loss of sons, physical contact with his tends to be consortium from an obviously too harsh and is un- spouse caused negligence of a participate any physical able activities third tortfeasor. v. Mil Whittlesey turn, They, becoming with them. are ler, 572 Much having hostile and prob- withdrawn and are recently, more Ap the Texarkana Court lems school. peals upheld an award for men anguish tal parents of an born infant overdue, Although long it was this state prematurely allegedly blinded finally recognized and allowed oxygen. high administration of levels of damages by companion- children loss of Birchfield, Hall v. 337-38 ship anguish wrongful mental writ). That — Texarkana parent. Quality death Cavnar Whittlesey court cited and noted that “[n]o Parking, Control can reasonable distinction be drawn be (Tex.1985). However, yet not as we have spouse’s right tween a for loss recover recognized compensated the child for and companionship of society and of the parent loss the the child suffers when spouse parent’s right and a for to recover severely injured is but Other survives. loss companionship of and of society a recognized states have that no reasonable child.” at Id. 337. distinction can drawn death and between I injury find no on consor- reasonable distinction severe where effect between Frank, M.D., parent’s right a is to recover for the loss of tium concerned. Howard Arizona, companionship society Superior and of and a v. 150 a child P.C. Court of right 228, 955, (1986); Hay child’s for the com 722 v. recover loss of Ariz. P.2d 957

767 recog- Vermont, previously Supreme Court has Hospital 145 Center Medical of familial 939, injuries to the relation- 533, (1985); nized that Vt. 496 A.2d Ueland significant worthy compen- of 131, ship and Co., are Metals 103 Wash.2d Reynolds v. Schindler, 651 S.W.2d sation. Weber, Sanchez (1984); Berger v. 691 P.2d wrote, Spears Justice (1981); N.W.2d 411 Mich. by parent sustained “The real loss [in Sons, v. Daniel O’Connell’s Ferriter any of is not the loss loss of a child] (1980). Mass. 413 N.E.2d gained from the to be financial benefit separated inju- is from severe Often death advice, love, child, of com- but is the loss fortuity. Frank, ry by mere Howard fort, society.” companionship and Id. Indeed, M.D., P.C., 722 P.2d at 957. Certainly and Sean have suf- Eric argued injury is worse than might be advice, comfort, this same loss fered pres- for the survivor because death society. father companionship and Their injured family member is ence of the up, boys hold pick able to will never be reminder of once was and constant what arms, them in participate in his with again. will never be strong represent or athletic endeavors argue injured Appellants that once the image a father who has not lost the idol injuries party compensated for his has been legs. If such a loss is use of his arms and theoretically placed position in the spouse parent, or compensable to a how injury occurred. have been would compensable loss to a say can it is not a we family mem- They contend that the other child. compensable loss. sustained no bers have dealing Although the Sanchez argument ignores unique nature This Act, they recog- Wrongful Death with injury of the to the other members recovery placed restrictions nized earlier Eric and Sean have suffered family. reasoned, Court, and recognizable injury, one that reasonably is, therefore, court to logical “It injuries sus- separate distinct from the the needs of a response now act by their and one for which tained father antiquated society, abolish the modem necessary. compensation is reasonable society of loss of in favor of rule argue is no there at 252. The anguish.” Id. and mental rule, plaintiffs cre- speaking for an award to the minor basis court was law, pecuniary loss imposing and 11 in- because Issues Nos. 10 ated case damages recoverable. damages to correctly as a limitation state the elements legislature has that the agree It is well-known I with they would be entitled. which Wrongful Death attempted amend the appellees this contention waived. occasions, yet none many onAct error, appellants required preserve To were rec- Supreme Court passed. The bills have distinctly which point the matter to out ognized its Cavnar role Sanchez grounds they objected failed to legislature has what the and did to do 274. Failure objection. Tex.R.Civ.P. do. complaint on any results waiver of so Campbell, ground appeal. Davis v. recognizable with a Now we are faced (Tex.1978). In their yet has not compensable loss which merely objections charge, children who suffer been awarded elements acts by way stated that listed loss look to the wrongful of a death action cannot parent. were those to a We not entitled for a solution because Wrongful and Sean Death Act that Eric parent complaint unfortunately, wrongful fortunately, death. recover the com- of the tortfeasor. comport with trial does not survived and well is alive the solution basis of plaint made the special loss This Furthermore, of this state. jury could the tort law appeal. compensated recognized and connect- been there was loss has and did find that love, consortium, has lost elements when a ed each of submitted society spouse of a companionship and damages. negligence. has survived a tortfeasor’s

Whittlesey, Further, 668. parent

the loss suffered whose child

has survived the acts of a tort- compensable.

feasor has held been to be

Hall, 718 It my 337-38. provide

viction Texas law does simply

such a and has not found

the case to apply— which such should law

until now. The in this case found

injury plaintiff’s sought sons

compensate them for that a

monetary I por- award. would affirm that judgment awarding

tion the trial court’s $1,000,000. and Sean

Eric

TEXACO, INC., Appellant,

PENNZOIL, CO., Appellee.

No. 01-86-0216-CV. Texas, Appeals

Court of (1st Dist.).

Houston

Feb. 1987.

Rehearings April 24 Denied

May

Case Details

Case Name: Hughes Drilling Fluids, Inc. v. Eubanks

Court Name: Court of Appeals of Texas

Date Published: Dec 11, 1986

Citation: 729 S.W.2d 759

Docket Number: B14-85-716CV

Court Abbreviation: Tex. App.