*482 OPINION
This is a wrongful death case on remand from the Supreme Court of Texas
TDN’s first point of error was originally sustained by this Court and the case remanded thereon. However, the Texas Supreme Court reversed our disposition of the case, overruling the first point and remanding the case to our Court to address the remaining points of error. Having examined TDN’s remaining points, followed by Trailways’ points, and finally, appellees’ cross-points, we have determined that the judgment of the trial court holding Trailways liable should be reversed and judgment here rendered that appellees take nothing against Trailways, with the remainder of the judgment affirmed.
By its third point of error, TDN complains that the trial court erred in allowing Officer Hector Morales to testify as an expert on the cause of the accident and the speed of the bus. TDN challenges Morales’ qualification to testify as an expert to these matters.
Hector Morales testified that he is presently a supervisor for the Mexican Federal Police and that he has been with the federal police continuously in various capacities since the time of the accident. He testified that he has a junior high school education and a year and a half of vocational school. In order to get into the federal police, he took a course which consisted of, among other things, Mexican traffic rules, driving skills and traffic accidents. In addition, he has taken several up-date courses covering traffic accidents and a twelve-day engineering course giving him some knowledge of engineering as it relates to accidents. In these various courses, Morales has been taught to determine the speed of a vehicle by the length of its skid marks, taking into account the vehicle, the road, and the driver.
At the time of the accident in October 1979, Morales was the officer in charge of vigilance, and his duties included patrolling the highway and going to the scene of accidents within his assigned area between Queretaro and Mexico City. He was on duty in the early morning of October 4th when the accident in question was reported to him over his radio and he rushed to the scene. The accident occurred on, or just beyond, a 90 degree curve in the road, approximately halfway between Queretaro and Mexico City. Morales testified that he has traveled that highway many times and is familiar with this curve. The road is a four lane divided highway, most of which has a posted speed limit of 100 kilometers per hour (kph) because it has very few curves. On the curves, however, the speed limit is reduced to 80 kph. Morales testified that the speed limit in Mexico is 80 kph when not otherwise posted, and that, therefore, the speed limit on the curve where the accident occurred was 80 kph.
When Morales arrived at around 7:30 a.m., he observed two tire tracks leading off the highway from the inside lane to the right edge, and the bus overturned in a ravine some 25 meters beyond the highway. Morales measured these tracks at 50 meters by pacing them off. In addition, he observed that the right suspension bar of the bus had broken off. Morales testified that he believed the broken right suspension must have caused the bus to go out of *483 control and contributed to the accident but that speed was also a factor in the accident. Using tables given to him at a course he took with the highway patrol and accepted in Mexico by the engineers from the ministry of communication, Morales testified that the 50 meters of tracks on the highway reflect that the bus was traveling at least 102 kph before the driver lost control. In addition, after leaving the highway the bus continued to travel some 10 meters over flat ground before turning over one and a half times. Morales concluded that the bus could not have safely exceeded 90 kph on the curve and that, if the bus had been going the 90 kph or the speed limit, it would have been able to stop before the turnover which caused the deaths of the decedents.
A witness who, by his knowledge, skill, experience, training, or education, has specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue may express an opinion about the matter.
DeLeon v. Louder,
TDN specifically points to a law review note cited in
Clark,
‘As for regular police officers, sheriffs, mechanics, etc., it generally may be said that they lack such training and experience as would qualify them to make a scientific analysis from physical evidence, regardless of how many accident scenes one may have examined.’ Note, Opinion Testimony of Expert ‘Accident Analyst’ Reconstructing Collision Admissible, 38 Tex.L.Rev. 503, 506 n. 14 (1960).
Nevertheless, even if some of the more technical aspects of accident reconstruction are generally outside the competence of most law enforcement officers, our own Court has stated that an investigating officer, once shown to be qualified, may properly base an estimate of speed upon skid marks.
Rogers,
In the present case, Officer Morales adequately related his police training and the tables he had been taught to use in determining the speed of a vehicle from its skid marks. We hold that it was within the trial court’s discretion to allow Morales to testify as a expert regarding the speed of the bus and its contribution to the cause of the accident. TDN’s third point of error is overruled.
By its fourth and fifth points of error, TDN challenges the legal sufficiency of the evidence to support the jury’s findings that TDN failed to keep such a lookout as a person using a high degree of care would have kept, and that it was driving at a greater rate of speed than a person using a high degree of care would have driven.
In considering a “no evidence,” “insufficient evidence” or “against the great weight and preponderance of the evidence” point of error, we will follow the well-established test set forth in
Pool v. Ford Motor
*484
Co.,
In the present case, the testimony of Officer Morales that, based on his knowledge of the road and his analysis of the skid marks and the accident scene, the bus was going over 100 kph in an area where the speed limit was 80 kph and that it would not have been safe to exceed 90 kph, we find that there is some evidence to support the jury’s finding that TDN’s driver exceeded the rate of speed at which a person using a high degree of care would have driven.
Because there is legally sufficient evidence to support the judgment based on the jury’s finding of excessive speed, we need not examine whether there is sufficient evidence also to show failure to keep a proper look-out. Appellant TDN’s fourth and fifth points of error are overruled.
By its second point of error, TDN complains that the trial court erred in applying Texas law, as opposed to Mexican law, to. the issues of wrongful death damages and indemnity.
From the record, it appears that TDN properly put the trial court, Clark and Trailways on notice of its intent to rely on Mexican law to determine the amount of damages, by filing more than 30 days prior to trial a letter from a Mexican attorney explaining the provisions of Mexican law relating to wrongful death damages, together with copies of the Mexican law and certified translations.
See Ossorio v. Leon,
We will now discuss whether it was proper for the trial court to apply Texas law to the calculation of wrongful death damages. In
Gutierrez v. Collins,
Section 6 of the Restatement provides broad general guidelines for deciding any conflicts question based on the relative interests of the states involved:
§ 6. Choice-of-Law Principles
(1) A Court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Section 145 applies these guidelines specifically to tort actions:
§ 145. The General Principle
*485 (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
Finally, though not mentioned in Gutierrez or Garcia, section 175 of the Restatement (Second) of Conflict of Laws provides:
§ 175. Right of Action for Death
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
In
Duncan v. Cessna Aircraft Co.,
In the simplest case, when the only identifiable competing state interests are that the plaintiffs are residents of one state and the defendants are residents of another, and no other factors would make the interests of one state any more significant than those of the other, wrongful death damages will generally be determined according to the law of the place of injury.
See Harris v. Polskie Linie Lotnicze,
However, when additional considerations favor one state or the other, the place of injury is no longer the controlling factor. The next task is to determine the relative significance of the states’ interests to the particular case and issues. Moreover, in
Gutierrez,
In the present case, the decedents and their survivors, plaintiffs in the present wrongful death suit, are Texas residents. The present controversy began when decedents bought round trip bus tickets to Mexico City from a subsidiary of Trailways in Corpus Christi, Texas. Trailways, which does not provide bus service in Mexico, had what is termed an “interlining” agreement with certain Mexican bus lines, including TDN, whereby Trailways would issue tickets to destinations in Mexico and TDN would honor the Trailways tickets from the border to the passenger’s destination in Mexico and would then reclaim from Trailways the price of the ticket for the Mexican portion of the journey, less a 12% commission for Trailways. In turn, TDN had similar rights under the agreement to sell tickets to destinations in the United States which Trailways would hon- or.
The decedents boarded a Trailways bus in Corpus Christi and traveled to Brownsville, Texas, where they boarded a TDN bus and continued their journey across the *486 border and chose to “interline” with TDN to Mexico City. The accident causing their deaths occurred in Mexico as an alleged result of TDN’s negligent operation of the bus on which the decedents were traveling.
In wrongful death cases, Texas has an interest in protecting the rights of its citizens to recover adequate compensation for the wrongful death of their relatives in foreign lands. Mexico has a competing interest in protecting its residents from what it may consider to be excessive liability to foreigners for actions occurring on Mexican soil. Were these the only interests involved in the present case, we would be compelled to hold that neither Texas nor Mexico had a more significant interest and that the law of Mexico as the place of the injury applies.
See Harris,
However, the relationship between the decedents and TDN began in Corpus Christi, Texas, at the time they purchased bus tickets granting them the option of traveling on TDN from the Texas border to Mexico City. The initial negotiation and agreements leading to an entrustment by Texas residents of their safety to the foreign national occurred on Texas soil. This negotiation centered, or at least initiated, the relationship between decedents and TDN in Texas, which has at least as much significance to the overall duty to compensate the survivors as the actual place of the negligence or death. When a foreign corporation, by itself or through its agents, solicits business in Texas with Texas residents, as TDN did in effect through the interlining agreement, Texas has an interest in compelling the foreign corporation to pay adequate compensation for injuries to those residents, even if they occur in the foreign state or country.
In
Wall v. Noble,
In addition, the widespread adoption of the Restatement’s “most significant contacts” test leads us to give some weight to out-of-state cases. In
Kinnett v. Sky's West Parachute Center, Inc.,
Similarly, in the present case, we hold that there was no injustice in requiring TDN to be responsible according to Texas law for the death of passengers who bought round trip tickets to Mexico City in Corpus Christi and that the trial court did not err in weighing Texas’ contacts as the *487 most significant. TDN’s second point of error is overruled.
By TDN’s sixth point of error and Trailways’ tenth, both appellants argue that the trial court erred in admitting post-death pictures of the decedents’ bodies and testimony concerning their treatment and handling. There was extensive testimony by Linda Ramirez and Cynthia Cortez, daughters of Trejo, and Gloria Trevino, daughter of Mayorga, about the condition of the bodies and how they had been treated after the accident.
Ramirez testified without objection that her mother’s body was leaking fluid from its casket and that the only time she saw her mother after the accident was in a post-death picture printed in a Mexican magazine. At this point, appellees offered post-death magazine pictures of the bodies, and appellants objected on the grounds that they were irrelevant, immaterial, and inflammatory. The objections were overruled and the pictures admitted.
Cortez testified without objection that her mother had asked her to put booties on her feet after she died to keep them from getting cold, but she was not able to because the casket couldn’t be opened because of the horrible smell, and all she could do was hug it. Cortez also stated that her mother was not embalmed. In response to the question whether she was bothered by any thoughts concerning her mother’s body, Cortez further testified that she was bothered that her mother was set out by the side of the road after the accident, put on a slab for four days without refrigeration, allowed to decompose, and buried by the side of the road. Trailways objected to Cortez’ last statements as inflammatory and irrelevant. The trial court, without ruling on the objection, admonished the witness to stick to the questions asked. Trailways made no further objection or motion to strike.
Gloria Trevino testified without objection that her mother’s body was first buried in a field beside the road in a common grave and that the body had not been embalmed. Trevino made arrangements with a Mexican funeral director to exhume the bodies and fly them to Corpus Christi. Trevmo further testified that the bodies were put in coffins on a Thursday, taken to the airport on Friday morning, and left outside with the freight until Saturday when they flew out. She also stated that the coffins were leaking body fluids and that the crates in which the coffins were contained took 11 people to carry them. When asked about her experience in going over to the crates, Trevino then testified that her children wanted to walk over to the coffin, but Trailways cut off the remainder of her answer by an objection on the grounds of relevance and inflammatory nature, which was overruled by the court. Trevino then testified that she and her children could smell the body and that they got the body fluids on their hands. Trevmo then testified that she later saw a magazine picture of her mother with her face split open. Appellees tendered the picture into evidence, and appellants objected on ground of relevance. The trial court overruled the objection and admitted the picture into evidence. Trevino then testified that she was angry that the picture had been published and that whoever had her mother’s purse could have easily found her identification and called Trevino to have her mother picked up before she was buried in Mexico. TDN moved to strike this testimony on the ground that it assumed matters not in evidence. The trial court overruled the objection.
In order to preserve the right to complain on appeal about the admission of evidence, a party must have objected at the time the evidence was offered, the objection must have been specific enough to enable the trial court to understand the precise nature of the error alleged, and the party must have obtained a ruling on the objection.
Guzman v. Solis,
The objections that were made, moreover, failed to preserve error. Specifically, Trailways’ objection to Cortez’ numerous statements concerning the mistreatment of Trejo’s body was never ruled on and thus did not preserve error.
See Duke,
With regard to the post-death pictures of the decedents, although there were specific objections on the grounds of relevance and prejudice, the daughters, without objection, graphically described certain elements of the condition of the bodies before and after the pictures were introduced. Even though an objection to evidence is properly made, prior or subsequent presentation of essentially the same evidence without objection waives error.
See Missouri Pacific R.R. Co. v. Huebner,
However, even if appellants’ point had been preserved, the pictures were nevertheless relevant and admissible as evidence of the decedents’ physical pain and suffering before death, which is compensa-ble to the decedents’ estate as a survival cause of action and was pleaded and recovered in the present case.
See Tarrant County Hosp. Dist. v. Jones,
The nine remaining points of error are brought solely by appellant Trailways. By its first point of error, Trailways complains that there was no evidence, pleadings or findings to support disregarding the corporate separateness of Trailways from its wholly-owned subsidiaries, Trailways Bus Systems, Inc., (TBS)- and Trailways Texas, Inc. (Trailways Texas).
The evidence is undisputed that decedents purchased their tickets from TBS at a TBS bus station and that Trailways Texas operated the buses from Corpus Christi to Brownsville and the bus station in Brownsville from which decedents transferred to a TDN bus. Although the jury verdict found only that TDN had negligently caused the accident, the trial court extended liability to Trailways based on the court’s own findings that Trailways was an agent for the undisclosed principal TDN and that Trailways breached its implied contract for safe passage during decedents’ travel in Mexico. The critical act that ap-pellees relied upon to extend liability to Trailways under both theories was the sale of the tickets by TBS at the decedents’ point of departure in Corpus Christi, Texas. If the contract for passage can be viewed as an act of Trailways itself, as well as of its subsidiary, then liability may be extended.
Appellees seek to characterize Trailways’ contentions here as an argument that it had been sued by the wrong name or in the wrong capacity. We note initially that when a plaintiff’s cause of
*489
action should have been brought against a separate and distinct corporate entity other than the one sued, there is no misnomer. Rather, there is a mistake in identity, and the wrong party is under no obligation to correct that mistake.
See Braselton-Watson Builders, Inc. v. Burgess,
On the other hand, if Trailways was complaining that it had been sued in the wrong capacity, it would have had to raise that defense in a verified pleading in accordance with Tex.R.Civ.P. 93.
See Van Voorhies v. Hudson,
However, as Trailways points out, the problem is not one of failure to sue under the correct name or in the correct capacity but one of failure to sue the correct party. Appellees brought suit against Trailways alone as the party directly liable under the above theories. Their pleadings neither mentioned TBS or Trailways Texas nor did they allege alter ego or any other type of derivative liability between Trailways and its subsidiaries. Where, as here, the defendant is sued in its individual capacity and not in an alter ego or derivative capacity, capacity to sue is not placed in issue so as to give rise to a duty on the part of the defendant to deny such capacity under Tex.R.Civ.P. 93.
See Light v. Wilson,
In addition, notwithstanding appellees assertions that Trailways laid behind the log concerning its denial of liability for its subsidiaries’ torts, the relationship between Trailways as the parent and TBS as the subsidiary which sold the tickets to the decedents was known to appellees as early as October 16, 1981, when Roland Rose, president of TBS and Trailways Texas and a vice-president of Trailways, gave deposition testimony indicating the relationship between Trailways and its subsidiaries. This should have put appellees on notice that they may have sued the wrong corporation.
See Lucas v. Texas Indus., Inc.,
Even if alter ego or derivative liability had become an issue in the case at the time of trial, however, there was no evidence to hold Trailways liable for the actions of its subsidiaries. Generally, a court will not disregard the corporate fiction and hold a corporation liable for the obligations of its subsidiary except where it appears the corporate entity of the subsidiary is being used as a sham to perpetrate a fraud, to avoid liability, to avoid the effect of a statute, or in other exceptional circumstances when the corporate form has been used as part of a basically unfair device to achieve an inequitable result.
See Castleberry v. Branscum,
However, there must be something more than mere unity of financial interest, ownership and control for a court to treat the subsidiary as the alter ego of the parent and make the parent liable for the subsidiary’s actions.
Lucas,
In the present case, the only evidence offered to connect TBS or Trailways Texas to Trailways was the deposition testimony of Rose that TBS and Trailways Texas are wholly-owned subsidiaries of Trailways, that TBS, Trailways Texas, and Trailways all have their principal places of business in the same office building in Dallas, Texas, and that the majority of the directors of the corporations are the same. This was not sufficient to show that the parent/subsidiary relationship had been used as part of a basically unfair device to achieve an inequitable result, or that the subsidiaries were organized and operated as mere tools or business conduits of the parent.
Finally, appellees point to certain documents filed as exhibits to their post-verdict Motion for Judgment which suggest that Texas Trailways had dissolved, TBS had its authority to do business in Texas withdrawn, and that under the circumstances Trailways assumed the liability of its subsidiaries. However, these matters are not a part of the evidence and were not before the court or jury at the time of trial. Had they believed that these documents were material and would have probably produced a different result at trial, appel-lees should have sought a new trial on the ground of newly discovered evidence.
See Jackson v. Van Winkle,
In conclusion, we hold that there was no evidence, pleadings or findings to support disregarding the corporate separateness of Trailways from its wholly-owned subsidiaries and that judgment should not have been rendered against Trailways based entirely on the extension of liability to the subsidiaries. Appellant Trailways’ first point of error is sustained.
By its second through fifth points of error, Trailways complains that the trial court erred in entering judgment against it based on the court’s directed verdict that Trailways was acting as an agent for the undisclosed principal TDN. 1 Specifically, Trailways complains by its third point of error that the trial court erred in refusing to submit to the jury the question of disclosure, since substantial fact issues were raised by the evidence on the issue of disclosure.
In order to hold Trailways liable for the negligence of TDN, the trial court made its own findings before the case went to the jury, that Trailways both acted as agent for the undisclosed principal TDN and breached its implied contractual duty of safe passage to the decedents. When reviewing a directed verdict, we must determine whether any evidence of probative force raises fact issues on the material questions presented.
Qantel Business Sys., Inc. v. Custom Controls Co.,
In Texas, public transportation companies are not insurers of the safety of their passengers.
City of Dallas v. Jackson,
One who acts as agent for another in making a contract is individually liable thereon as agent for an undisclosed principal if, at the time of making the contract, he fails to disclose his agency and the identity of his principal. If the agent would avoid personal liability, the duty is on him to disclose his principal; the duty is not upon the party with whom the agent deals to discover the principal.
Hideca Petroleum Corp. v. Tampimex Oil Int’l Ltd.,
In the present case, at its Corpus Christi station, Trailways sold to the decedents, bus tickets conspicuously labelled “Continental Trailways.” The tickets indicated Corpus Christi as the departure point and Mexico City as the destination. In addition, the back of the tickets stated, “the selling carrier acts only as agent and is not responsible beyond its own line.” Although the tickets themselves did not mention other specific bus lines, they were redeemable for TDN tickets at the border in accordance with the interlining agreement with TDN. In the present case, unlike the cases cited above, there was no direct evidence from the parties to the agreement concerning the actual negotiations and representations made by the agent at the time the contract was formed which would show the agent’s disclosure or nondisclosure of his representative capacity.
Cf. Dodds,
A civil litigant who asserts an affirmative claim for relief has the burden to prove every fact essential to his case.
Vance v. My Apartment Steak House of San Antonio, Inc.,
The circumstances surrounding the ticket purchase, including Rose’s speculation and the fact that the tickets themselves do not disclose the principal, may be sufficient evidence from which the jury could find that Trailways did not disclose its agency.
See Dodds,
Having sustained Trailways’ first and third points of error, we need not address its remaining points.
*492 Finally, we address appellees’ four cross-points of error. By their first cross-point, appellees complain that the trial court abused its discretion in refusing to allow them to make a trial amendment expressly placing alter ego in issue.
Texas Rules of Civil Procedure 63 and 66 require the trial court to allow amendment of pleadings unless there is a showing of surprise to another party in maintaining his action or defense.
Greenhalgh v. Service Lloyds Ins. Co.,
In addition, although an amendment to trial pleadings may be allowed after verdict and before judgment in order to conform to the proof established at trial,
see Green-halgh,
By their second cross-point, appellees complain that the trial court erred in refusing to submit their requested special issues on joint venture between Trailways and TDN based on the interlining agreement. We find, however, that there was no evidence to support this theory and that the trial court correctly directed a verdict in appellants’ favor on this issue.
The elements of a joint venture are: (1) a community of interest in the venture; (2) an agreement to share profits; (3) an agreement to share losses, and (4) a mutual right of control or management of the enterprise.
Ayco Dev. Corp. v. G.E.T. Serv. Co.,
By their third cross-point, ap-pellees complain that the jury’s findings that Gilbert V. Mayorga, decedent’s husband, suffered only $1.00 in damages in response to each of several inquiries generally regarding past and future care, maintenance and support, loss of companionship, and mental anguish, were against the great weight and preponderance of the evidence.
The amount to be awarded for the losses of a surviving spouse as a result of wrong
*493
ful death is primarily within the discretion of the jury, based upon their own knowledge, experience and sense of justice.
See Malone & Hyde, Inc. v. Hobrecht,
By their fourth cross-point, appel-lees complain that the jury’s findings that decedents’ daughters, Gloria Trevino, Linda Ramirez, Nilda Rangel and Cynthia Cortez suffered no loss of inheritance were against the great weight and preponderance of the evidence.
The daughters’ claims for loss of inheritance are legitimate bases for awarding damages as a result of a wrongful death.
Yowell v. Piper Aircraft Corp.,
That portion of the judgment of the trial court holding Trailways jointly and severally liable to appellees for the damages awarded is reversed, and judgment is here rendered that appellees take nothing against Trailways. The remainder of the judgment is affirmed.
Notes
. For simplicity of discussion, we will refer to the actions of Trailways’ subsidiaries as those of "Trailways” in our discussion of this point.