Fuller, Kim v. Graham, Alonzo Roy, D/B/A Mustang Riding Stables and Mustang Riders, Inc.

NUMBER 13-00-144-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

KIM FULLER, Appellant,

v.

ALONZO ROY GRAHAM, D/B/A

MUSTANG RIDING STABLES

AND MUSTANG RIDERS, INC., Appellees.

___________________________________________________________________

On appeal from the County Court at Law No. 1 of Nueces County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Chief Justice Seerden

Appellant Kim Fuller filed suit against appellees Alonzo Roy Graham, d/b/a Mustang Riding Stables, and Mustang Riders, Inc., for damages and personal injuries sustained when his vehicle struck a horse on state highway 361. After trial, the jury found that the negligence of appellees proximately caused the incident in question. The jury awarded Fuller $44,706.00 in damages for past and future medical care, physical pain and mental anguish, physical impairment, and loss of earnings. The jury further awarded Fuller $1,000 for the difference in market value of his vehicle before and after the collision.

Appellees filed a motion for judgment notwithstanding the verdict on the grounds that (1) there was no evidence to support the jury's affirmative finding that defendants were negligent, and (2) there was no evidence to support the jury's finding that Graham was individually liable. The trial court granted the judgment notwithstanding the verdict without specifying the grounds on which such judgment was based.

Fuller appeals this take-nothing judgment by one issue. Fuller contends that the trial court erred in granting the motion for judgment notwithstanding the verdict because there is ample evidence to support the jury's finding that appellees were negligent. We affirm the trial court's judgment.

Standard of Review

A trial court may disregard a jury's findings and grant a motion for judgment notwithstanding the verdict only when there is no evidence upon which the jury could have made its findings. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). In other words, a trial court may render a judgment notwithstanding the verdict if a directed verdict would have been proper. See Tex. R. Civ. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991).

In reviewing a judgment notwithstanding the verdict, we determine whether there is any evidence upon which the jury could have made its finding. The record is reviewed in the light most favorable to the finding, considering only the evidence and inferences that support the finding and rejecting the evidence and inferences contrary to the finding. See Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 513 (Tex. 1998); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986). If there is more than a scintilla of competent evidence to support the jury's finding, then the judgment notwithstanding the verdict will be reversed. See Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989).

In the present case, the trial court's order granting the judgment notwithstanding the verdict fails to state the grounds on which it was granted. When the motion presents multiple grounds for judgment notwithstanding the verdict and the trial court fails to state the grounds on which it granted judgment notwithstanding the verdict, the appellant has the burden of showing that the judgment cannot be sustained on any of the grounds stated in the motion. Fort Bend County Drainage Dist., 818 S.W.2d at 394; Henderson v. Central Power & Light Co., 977 S.W.2d 439, 444 (Tex.App.--Corpus Christi 1998, writ denied). In the instant case, the motion for directed verdict was premised on two grounds: (1) there was no evidence to support the jury's affirmative finding regarding that appellees were negligent, and (2) there was no evidence to support the jury's finding that Graham was individually liable. Fuller concedes that there was no evidence to support the jury's finding that Graham was individually liable, thus our review will focus on the negligence finding.

Factual Background

On August 5, 1995, at approximately 6:00 a.m., Fuller was traveling to work at Harbor Island on highway 361. It was dark, and a horse ran from the right side of the highway onto the road and struck his vehicle. The accident happened "just about across the street" from Mustang Riding Stables, which was also located on the right side of the road. The buildings comprising the Mustang Riding Stables facility were the only buildings located in the vicinity of the accident, but they were "a ways off the road."

Fuller was unable to describe the horse that he hit. He testified that he was "reasonably sure" that it was a horse from Mustang Riding Stables. Fuller did not see any Mustang Riding Stables fences that were down or in disrepair, or gates that were open. He did not see any other horses in the vicinity of the accident.

Graham testified that Mustang Riding Stables maintains horses on its property in thirty to forty separate pens. While the property is fenced, the fence was erected after the accident in question. Graham testified that Mustang Riding Stables employed many safeguards to keep the horses in their pens and on the Mustang Riding Stables property.

Graham testified that the horses were fed at approximately 6:00 a.m. each morning, and none of the horses were out of their pens at the time of the incident in question. His employees would normally have been present on the premises at that time. Graham testified that he knew his horses by heart, and none were missing on the day of the incident. Graham testified that it was "absolutely" not his horse that was involved in Fuller's collision. In response, Fuller showed the jury that Graham failed to produce a written inventory of the horses as requested in discovery.

Graham could not testify about the status of Mustang Riding Stable's fences or gates on the day in question. He testified that the stable's gates would have been opened on and off throughout the day in order to work and feed the horses.

Graham testified that "quite a few" other persons and entities kept horses on Mustang Island. Four or five different persons or facilities kept horses within a mile or mile and a half of Mustang Riding Stables, and Mustang Riding Stables was located about 800 feet from the ditch running alongside highway 361. Graham further testified that "lots" of prior accidents involving horses had occurred on Mustang Island, and that one of his horses had been involved in a collision on one occasion.

Analysis

Livestock owners may be liable for negligence if their animals stray onto highways. Gibbs v. Jackson, 990 S.W.2d 745, 749 (Tex. 1999); Beck v. Sheppard, 566 S.W.2d 569, 572-73 (Tex. 1978); see Weaver v. Brink, 613 S.W.2d 581, 583-84 (Tex.Civ.App.--Waco 1981, writ ref'd n.r.e.). The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

In the instant matter, there was no more than a scintilla of evidence that appellees were negligent. The mere presence of the horse on the highway and the proximity of the accident to Mustang Riding Stables does not create a presumption that appellees were negligent. See Beck, 566 S.W.2d at 571-72. There was no evidence that any of Mustang Riding Stables' pens were down or gates open at the time of the accident, or that appellees' horses had a propensity for escaping. Id. at 573. There were no facts or circumstances that can be said to have reasonably alerted appellees to the possibility that a horse had escaped the fences or gates, or that would show that appellees failed to exercise due care. Id.; see also Weaver v. Brink, 613 S.W.2d 581 (Tex.Civ.App.--Waco 1981, writ ref'd n.r.e.).

In the instant matter, Fuller argues that circumstantial evidence established that appellees owned or controlled the horse involved in the collision, thus creating a legal duty on the part of appellees. Fuller concedes that there is no direct evidence that appellees owned or controlled the horse, but argues that the proximity of the stables to the location of the accident, and Graham's failure to produce an inventory of the horses as requested in discovery, raises more than a scintilla of evidence to support the jury's finding.

Although an ultimate fact may be proved by circumstantial evidence, such a finding must be based on inferences fairly drawn from the facts in evidence and not on surmise or speculation. See Briones v. Levine's Dept. Store, 446 S.W.2d 7,10 (Tex. 1969). The circumstances relied upon must be of such a character as to be reasonably satisfactory and convincing, and must not be equally consistent with the non-existence of the ultimate fact. Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 (Tex.App.--Houston [1st Dist.] 1995, writ denied). Meager circumstantial evidence from which equally plausible but opposite inferences may be drawn is speculative and thus legally insufficient to support a finding. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). In this case, we find that the evidence consists solely of speculation, and thus constitutes no evidence to support the jury's verdict that Mustang owned or controlled the horse.

Conclusion

Fuller failed to show more than a scintilla of evidence that appellees were negligent and that their negligence was the proximate cause of his injuries. Accordingly, we overrule Fuller's sole issue on appeal and affirm the judgment notwithstanding the verdict granted by the trial court.

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 28th day of December, 2000.