CV4-746 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00746-CV



Ubaldino Hernandez and Georgia Hernandez, Appellants

v.

Glen T. Christianson d/b/a/ Christianson Company, Christianson Brothers Commercial Division, Christianson Enterprises, Christianson Properties, and Christianson Air Conditioning & Heating, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 457,572, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

PER CURIAM

Appellants Ubaldino and Georgia Hernandez appeal from the summary judgment rendered against them in their personal injury action. The suit arose out of an automobile accident involving Ubaldino Hernandez and Terrence Neidig, appellee's ⁽¹⁾ employee. In one point of error, appellant contends that the trial court erred in granting summary judgment for appellee because material fact issues existed concerning appellee's liability. We will affirm the judgment.

Background

In February 1987, Neidig allegedly drove a trailer-hauling pickup truck into the back of another truck in which appellant Ubaldino Hernandez was a passenger. Neidig leased the truck that he was driving and a "DitchWitch" ⁽²⁾ from a corporation in which appellee Glen Christianson was a shareholder and officer. The accident occurred during the lease period. Although Neidig was an employee, appellee contended he was not acting within the course and scope of his employment at the time of the accident. Appellee moved for summary judgment, contending that he had negated the only two causes of action pleaded against him: negligence based on vicarious liability and negligent entrustment.

Summary Judgment

On review of a summary judgment, the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and it is entitled to summary judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). The dispositive issue is not whether the summary judgment proof raises fact issues, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). For a defendant-movant to obtain a summary judgment, it must disprove, as a matter of law, one essential element of each of plaintiff's causes of action. Lear Siegler, Inc., v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Toungate v. Bastrop Indep. Sch. Dist., 842 S.W.2d 823, 825 (Tex. App.--Austin 1992, no writ).

In a summary judgment proceeding, the non-movant must, in a written answer or response to the motion, expressly present to the trial court those issues that would defeat the movant's right to a summary judgment and, failing to do so, may not later assign them as error on appeal. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). When the moving party establishes facts entitling it to prevail, the trial court will not deny a motion for summary judgment because the opposing party has merely alleged matters which would require the court to render a different judgment without producing evidence. American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994); Kuper v. Schmidt, 338 S.W.2d 948, 951 (Tex. 1960).

Causes of Action

Appellee had the burden to disprove, as a matter of law, at least one element of each of appellants' pleaded causes of action. Lear Siegler, 819 S.W.2d at 471. Appellee moved for summary judgment on two causes of action: negligent entrustment and negligence based on vicarious liability. Appellants contend that they pleaded another cause of action, specifically, a direct liability ⁽³⁾ negligence action against appellee. Appellants base this claim on a general allegation of negligence in their original petition and the use of the words "each defendant" in connection with that allegation. However, appellants modified the general allegation in the petition with a specific allegation as to appellee employer-defendant. The petition alleged specifically that the employer's negligence consisted of negligent entrustment. Specific allegations in a pleading control over general ones, and appellants are confined to the specific allegations in their pleadings. Monsanto Co. v. Milam, 494 S.W.2d 534, 536 (Tex. 1973); Chuck Wagon Feeding Co., Inc., v. Davis, 768 S.W.2d 360, 364 (Tex. App.--El Paso 1989, writ denied). Therefore, appellee needed only to disprove one element of each of two causes of action.

Vicarious Liability

Appellee does not dispute that Neidig was an employee. The disputed issue on summary judgment was whether Neidig was in the course and scope of his employment such that vicarious liability could be imposed on his employer. ⁽⁴⁾ Appellee's evidence on summary judgment included a lease signed by Neidig, covering the period during which the accident occurred. The lease specified that Neidig assumed responsibility for the truck and trencher and further would indemnify appellee for any harm occurring during the lease period. Appellants' answer ⁽⁵⁾ to the motion for summary judgment did not contend that the lease was a sham. Appellee also adduced his affidavit in which he swore that he had personal knowledge of the company records, had searched them, and Neidig was not on the "company time clock" during any period covered by the lease.

Appellants contend that the summary judgment evidence showing that Neidig was using the truck and trencher to perform work for his church was hearsay. However, the exact nature of Neidig's business was irrelevant, as long as he was not engaged in appellee's business. In his affidavit appellee swore, based on personal knowledge, that no relationship existed between Neidig's church and any of appellee's companies. That evidence was not controverted. All appellee had to establish was that work for Neidig's church was not within the course and scope of Neidig's employment for appellee.

A summary judgment may be based on the uncontroverted evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies and could have been readily controverted. Tex. R. Civ. P. 166a(c); Watkins v. Hammerman & Gainer, Inc., 814 S.W.2d 867, 869-70 ((Tex. App.--Austin 1991, no writ). Appellants could have controverted the affidavit. For example, they could have secured time records through discovery and shown that Neidig actually was working at the time in question. Further, the existence of a written lease supports appellee's affidavit testimony. Had Neidig been acting on appellee's behalf, such a document would have been unnecessary.

Appellants rely on Creekmore v. Horton & Horton, Inc., 487 S.W.2d 148 (Tex. Civ. App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.), for the proposition that Neidig's employee status and appellee's ownership of the vehicle create a fact issue. In Creekmore there was evidence that the employee used the same car at work and while driving to and from work, that his employer could reach him during this time, that the employer paid for the oil and gas consumed in driving to and from work, and that the employer paid for the cost of repairs after the collision. Id. at 150. Appellants have produced no comparable evidence.

Appellee established facts on summary judgment that entitled him to defeat a cause of action for negligence based on vicarious liability. Appellants did not produce controverting evidence, but rather simply alleged matters in the answer that would lead to a different result. See American Petrofina, 887 S.W.2d at 830.

Negligent Entrustment

The elements of a cause of action for negligent entrustment are: (1) the defendant entrusted the vehicle to another; (2) the person to whom the defendant entrusted the vehicle was an unlicensed, incompetent, or reckless driver; (3) at the time of the entrustment the defendant knew or should have known that the driver was such; (4) the driver was negligent on the occasion in question; and (5) the driver's negligence proximately caused the accident in question. Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex. 1985); Monroe v. Grider, 884 S.W.2d 811, 815 (Tex. App.--Dallas 1994, writ denied). Knowledge of the driver's incompetence is an essential element of the claim. Briseno v. Martin, 561 S.W.2d 794, 796 n. 1 (Tex. 1977); Grider, 884 S.W.2d at 815.

Appellee produced summary judgment evidence that Neidig was not an unlicensed, incompetent or reckless driver. Appellee produced a driving record for Neidig showing a license and only one violation, a speeding ticket, in the three years before the February 1987 accident. Neidig, who was subject to random drug testing, tested negative for a variety of drugs nine days before the accident. Appellee also swore that Neidig showed no signs of intoxication at work, and it was company policy to send home, and possibly discharge, an employee who was intoxicated at work. This evidence establishes that Neidig was not an unlicensed, incompetent or reckless driver, at least in any way that left a record that would have meant that appellee should have known or suspected Neidig was incompetent or reckless.

Appellants produced no evidence in their answer that controverts appellee's evidence about Neidig's ability as a driver. The trial court, once the movant has produced facts entitling him to prevail, should not deny summary judgment based on conclusory allegations. See American Petrofina, 887 S.W.2d at 830. Appellee successfully negated any cause of action for negligent entrustment.

Appellee successfully disproved at least one element of each of appellants' causes of action and was entitled to summary judgment. We overrule appellants' point of error and affirm the judgment of the trial court.

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: August 16, 1995

Do Not Publish

1. ¹  Appellants originally sued Neidig, Christianson Brothers, Inc., and each of three Christianson brothers as individuals and "doing business as" several businesses. This action against Glen Christianson has been severed from the action against the other defendants.

2. ²  A "DitchWitch" is a trailer-loaded tool for digging trenches.

3. ³  Appellants' answer to appellee's motion for summary judgment asserts that a fact issue might exist about whether appellee negligently maintained the vehicle that Neidig drove.

4. ⁴  In this cause, the same facts negate liability under any theory of vicarious liability: employer-employee, master-servant, or principal-agent. "Servant" and "employee" in most cases are synonymous. Northwestern Nat'l Life Ins. Co. v. Black, 383 S.W.2d 806, 810 (Tex. Civ. App.--Texarkana 1964, writ ref'd n.r.e.). To hold a principal liable for an agent's act, the agent must be acting in furtherance of the principal's business. Magnolia Petroleum Co. v. Guffey, 102 S.W.2d 408, 409 (Tex. 1937); King v. Loessin, 572 S.W.2d 87, 90 (Tex. Civ. App.--Houston [1st Dist.] 1978, no writ). Therefore, the same facts that show Neidig was not acting in the course and scope of his employment also negate other forms of vicarious liability.

5. ⁵  Appellants' brief asserts that the lease was invalid. Appellants have waived this issue because it was never presented to the trial court. See Clear Creek Basin Auth., 589 S.W.2d at 679.