MONTOYA v. NUECES VACUUM SERVICE, INC.

OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial that appellants take nothing by their suit.

This suit was instituted by appellants Jose A. Montoya and wife Olivia Montoya, against Nueces Vacuum Service, Inc., and Jesse Lee Smith, defendants below and appellees here, seeking damages on account of the death of their son Steve Frank Montoya who was killed in an automobile accident occurring on October 14, 1966 in Nueces County, Texas. Steve Frank Montoya, usually referred to as "Frank" or "Frankie", was survived by his widow, Gloria Montoya, and a daughter, Stephanie, born after his death. The claims of the widow and minor daughter were settled prior to trial of the instant suit and are not involved herein.

In answer to two special issues inquiring as to the amount of compensation for the pecuniary damage sustained by each appellant as a result of the death of the son, Steve Frank Montoya, the jury found zero in each instance. A take-nothing judgment was rendered on the verdict.

Appellants assert 20 points of error. The first eleven points involve a basic contention that appellants are entitled to reversal and rendition of judgment in their favor for $50,000.00. Points 12 through 20 involve contentions which if sustained would result in reversal of the judgment and remand for new trial. Appellants' points 14 and 16 assert that the trial court erred in failing to grant a new trial because the jury answers to special issues 1 and 2 are each contrary to the overwhelming weight and preponderance of the evidence.

We have concluded that appellants' first eleven points should be overruled but that their points 14 and 16 should be sustained and that the judgment should be reversed and the cause remanded for a new trial.

We will first consider appellants' primary contention under their first eleven points—that they were and still are entitled to judgment as a matter of law that they recover damages in the amount of $50,000.00 from appellees. This case was called for jury trial on October 7, 1969. At that time the trial pleadings consisted of appellants' original petition, filed on July 8, 1968, and defendants' first amended original answer, filed on February 6, 1969.

The record reflects that the first proceedings had on the morning of October 7, 1969, were as follows:

The instrument referred to by counsel for appellees in his foregoing motion in limine reads as follows:

Immediately following the statement of appellees' Motion in Limine, hereinabove set out, and the tender of appellees' above referred to "admission", there was considerable discussion, and apparent confusion, concerning the same, as is initially reflected in some 22 pages of the Statement of Facts.

Appellees, from the beginning of the proceedings on October 7, 1969, have contended that their admission related only to the issue of liability, leaving the issues of damages to be determined by the jury. Appellants' position concerning appellees' admission was not always the same and will be discussed further hereinafter.

Immediately after the statement by counsel for appellees of their Motion in Limine, as hereinbefore set out in full, the following proceedings took place.

The court then recessed for one hour and reconvened at 10:22 A.M. At that time the colloquy between the court and counsel continued, in part as follows:

Counsel for appellants, among other things also made the following statements:

Counsel for appellees then replied at length, stating among other things in substance that appellants' petition had prayed only for the full amount of their damages, to which appellees admitted appellants were entitled, but that the question remained as to the amount of such damages. Counsel for appellants then urged an oral motion for judgment in their favor in the amount of $50,000.00, contending primarily that no issue of fact remained to be tried by the jury. Immediately thereafter, the following proceedings were had:

After discussion of other matters counsel for appellants and the court made the following additional statements:

The court then recessed for a short period of time and reconvened at 10:55 o'clock A.M. At that time appellants orally moved the court to allow them to withdraw their announcement of ready, in order that they might seek a writ of mandamus in an appropriate appellate court, which motion was also denied. The court then recessed until 1:55 o'clock P.M. We here set out in full all the proceedings had from that time until the beginning of the voir dire examination of the jury.

The endorsement of the trial judge on appellees' admission reads as follows:

The trial judge also made a docket entry as follows:

The case then proceeded to trial with appellees opening and closing the evidence and the argument. Appellants were the only witnesses to testify before the jury. At various stages of the trial appellants re-asserted their position that they were entitled to judgment for $50,000.00 against appellees on the basis of an alleged judicial admission made by appellees under Rule 266, Texas Rules of Civil Procedure.

Rule 266, T.R.C.P., effective September 1, 1941, together with the Historical Note thereto, as the same appear in Vernon's Texas Rules Annotated, read as follows:

District and County Court Rule 31, modified by adding reference to Rule 269 and by substituting "`is entitled to recover' for `has a good cause of action,' and `allegations' for `facts.' The last sentence was added."

Appellants contend that an admission under Rule 266 admits every fact alleged in a plaintiff's petition, including the amount of damages, citing Smith v. Frost, 254 S.W. 926 (Tex.Com.App., 1923, Judgment adopted); Love v. McGee, 378 S.W.2d 96 (Tex. Civ.App., Texarkana 1964, wr. ref. n. r. e.); Trice v. Stamford Builders Supply, 248 S.W.2d 213 (Tex.Civ.App., Eastland 1952, n. w. h.); Phoenix Mut. Life Ins. Co. v. Bernfield, 101 S.W.2d 1025 (Tex.Civ.App., San Antonio, 1937, n. w. h.). The first and fourth of the above cited cases were decided under former Rule 31, and the second and third under Rule 266, effective September 1, 1941. None of the above-cited cases relied on by appellants involve a fact situation such as we have here.

In Smith v. Frost, 254 S.W. 926 (Tex. Com.App. 1923, Judgment approved), the plaintiffs below sued out writs of execution and attachment upon an automobile. The defendant Frost claimed that he owned the vehicle rather than the judgment debtor and made bond in the amount of $3,000, which was an amount double that fixed by the officer who levied the writs. The plaintiffs alleged the value of the vehicle to be $2,500.00. The primary issue in the case was as to the ownership of the automobile. Frost filed an admission under Rule 31 which was duly entered of record and was granted the right to open and conclude the evidence and the argument. The Trial Court ruled in effect that by such admission Frost had admitted that he was not the owner of the automobile, that Boggs Bros., the judgment debtors were the owners thereof, and for such reason there was no issue for the jury. Defendant's attorney was surprised at such ruling but made no effort to withdraw or qualify the admission until a Motion for New Trial was filed. The Court of Civil Appeals reversed. The Supreme Court reversed the judgment of the Court of Civil Appeals and affirmed that of the trial court. The commission of appeals held in part as follows:

The instant case is not like Smith v. Frost, supra, where an unqualified admission was made under former Rule 31 and entered of record as tendered by the defendant who was then given the right to open and close the evidence and argument, and when the trial court ruled against him did not timely take any steps to withdraw or qualify his admission or his announcement of ready for trial because of surprise at the ruling of the Court concerning the admission filed by him, but waited until his motion for new trial to raise the question; and wherein the commission of appeals held that there was no abuse of discretion in overruling that motion.

In Love v. McGee, supra, a trespass to try title case, the court held in part as follows:

The present case is also not like Love v. McGee, supra, where the defendant's admission under Rule 266 was accepted by the court (apparently in a non-jury trial) and the defendant allowed to open and close the case as a plaintiff, but failed to make out his defenses, although the Court of Civil Appeals granted a judgment for defendant over against certain parties on the basis of breach of warranty of title.

In Trice v. Stamford Builders Supply, supra, another trespass to try title case, the court held that the trial court erred in refusing the appellants (defendants) the right to open and close the jury argument in view of an agreement made by the parties and the burden of proof on the issue submitted to the jury. The court held in part as follows:

This case is also not like Trice v. Stamford Builders Supply, supra, wherein the defendants were improperly refused the right to open and close the argument to the jury.

In Phoenix Mut. Life Ins. Co. v. Bernfield, supra, the court held in part as follows:

The present case is also not like Phoenix Mutual Life Ins. Co. v. Bernfield, supra, where the trial court held that the defendant was entitled to open and close the jury argument and secured a favorable finding upon which personal recovery was denied against him, and the Court of Civil Appeals reversed, holding that plaintiff was entitled to an instructed verdict and judgment for such personal recovery against the defendant.

In the case of National Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691 (1935) the court held in part as follows:

In 23 Tex.L.Rev. 293, 294 (1944) the case of Hancock v. Frost Lumber Industries, Inc., of Texas, 182 S.W.2d 747 (Tex.Civ. App., Beaumont, 1944, n. w. h.) is discussed. In particular, the effect of the last sentence of Rule 266 (which was added to old Rule 31) is noted. After mention of several decisions under the old Rule, including National Bank of Commerce v. Williams, supra, the following comment is made:

It thus appears that under Rule 266, and particularly because of the last sentence thereof, even after a proper admission is made, the defendant is no longer limited to defenses in confession and avoidance (as the cases held under former Rule 31) but may rely upon any defense which the defendant has the burden of establishing, and averments by the plaintiff incompatible with such a defense are not admitted.

None of the cases above discussed nor any others that have been cited to us involve a fact situation where a defendant's admission was tendered as a partial one was held by the trial court to be partial only, and defendant's request to open and close the evidence and argument was denied.

In the present case the initial question which the trial court was called upon to decide was whether the admission tendered by appellees was a partial one (relating to liability only) or a complete one (relating both to liability and to damages). After extended discussion the trial court ruled that appellees had made only a partial admission. The court then denied appellees' request to open and close. The court also overruled appellants' motion for judgment (being the first one of that nature made by appellants). At that time the posture of the case was that appellees had admitted liability and appellants were entitled to proceed to trial on the issue of damages with the right to open and close the evidence and argument concerning same. At a later time, after two recesses of court, counsel for appellants stated in substance that he believed that appellees had the right to open and close and that appellants withdrew their objections to appellees opening and closing. At that time the judge made it clear that his prior rulings were thought to be correct but that appellees would be allowed to open and close because appellants had withdrawn their objections to such action. The trial proceeded on that basis.

Appellees' tendered written admission was not offered by them as a complete admission applicable to damages as well as liability; nor was it accepted and entered of record by the court as a complete admission. The admission made by appellees, in view of their motion in limine and statements made in open court by counsel for appellees concerning that motion and appellees' admission, was not the kind of admission contemplated by Rule 266. The trial court was not required to accept appellee's tendered admission as a complete one under Rule 266, T.R.C.P., and properly qualified it by endorsing it and making a docket entry to reflect that the admission was partial only. The record, therefore, establishes that the appellees' tendered admission was never accepted by the trial court as a complete admission under Rule 266, T.R.C.P., and was never "entered of record" as such as provided by that Rule. In that situation appellees were not entitled to open and close the evidence and argument. The trial court ruled correctly in so holding. The ruling in such respect was never changed. Appellees were permitted to open and close only after counsel for appellants had affirmatively stated that he believed appellees were entitled to do so and withdrew appellants' objections to such procedure; and appellants do not now assert reversible error because of such procedure, which, in any event, was invited by them.

Even if we should agree that the trial court erred in holding that only a partial admission (that of liability) was made by appellees, it does not necessarily follow that the trial court should have granted appellants' motion (or motions) for recovery of $50,000.00, nor that this court should reverse for such reason and here render judgment in that amount for appellants. If the trial court had initially ruled that appellees' admission was not a partial one, but instead was a complete one, it is apparent from the state of the record then presented that there was no issue left to be tried, assuming (without deciding) that appellants' damages were alleged in a definite amount in their petition. In such assumed event, appellees would undoubtedly have had the right to withdraw the admission as so construed or to amend it in such manner as to admit liability only and to leave for trial the issue of appellants' damages. See Smith v. Frost, supra; Federal Life Ins. Co. v. Wilkes, 218 S.W. 591 (Tex. Civ.App., Amarillo, 1919, n. w. h.). As a practical matter that result was accomplished by the rulings of the trial court.

Even if reversible error is presented by the trial court ruling that appellees' admission was partial and not complete, this court would be authorized to remand the cause for new trial rather than render judgment for appellants in the amount of $50,000.00, and in such event we would hold that the justice of the case would require a remand. Rule 434, T.R. C.P.; Fay v. Fay, 151 S.W.2d 607 (Tex. Civ.App., Waco, 1941, wr. dism. J. corr.); Meade v. Logan, 110 S.W. 188 (Tex.Civ. App., Texarkana, 1908, wr. dism.).

Appellants' points 1-11 are overruled.

We now pass to a discussion of appellants' points 14 and 16 which assert in substance that they are entitled to a new trial because the jury answers to special issues 1 and 2 (zero damages for appellants) are each contrary to the overwhelming weight and preponderance of the evidence. Appellants were the only two witnesses on the trial of the case. Mr. Jose A. Montoya testified in substance as follows: Frank Montoya, the son was twenty years of age at the time of his death. He was the second of six children born to Jose and Olivia Montoya. He died as a result of the accident on October 14, 1966, approximately two months after his marriage. Mr. Montoya owns Nueces Auto Parts, a business in Corpus Christi, Texas, which he had operated for several years. He is in failing health, having suffered a heart attack in January 1965 and another in 1968. Mrs. Montoya has no business experience or other ability to run the business if something should happen to Mr. Montoya. Frank's older brother, Joe A. Montoya, Jr., is an engineer living in San Antonio. Although both he and Frank worked in the business when they were young, Joe left the store about 1965. There are no plans for Joe to return to the family business. Frank's younger brother, Bobby, has worked in the store, but not as much as Frank, being more interested in other activities. He helps now in the store, but requires more supervision than did Frank and is not as quick to learn. Mr. Montoya hopes he will stay in the business. Frank Montoya began working in the store at about age 11. The summer before his death, Frank worked for his father 8 hours per day, 7 days per week. After his marriage, he rented a house from his parents and commuted to classes at Texas A & I, Kingsville, Texas, working after school in the store. His studies were directed toward remaining in the family business. Frank graduated from high school in about 1963, and attended Del Mar College in Corpus Christi and St. Mary's University in San Antonio. After his marriage, he transferred to Texas A & I at Kingsville, Texas, and would have graduated in one more year (1967) had he not been killed. He majored in business administration. Frank worked in his father's store while in college. When he was at St. Mary's he came home on weekends and in the summer to help in the store. While commuting to Texas A & I he worked in the store after school and on weekends. After Mr. Montoya's first heart attack, Frank came home from school for several weeks to help run the store, and to assist the family by giving advice and taking care of necessary papers. He was willing to take care of the business during his father's illness, and told his parents not to worry, that he would take care of such things. When his mother worried about having to go to work and leave the younger children, Frank told her not to worry, that he would work and she could stay home and raise the younger children as she had him. Frank was planning to join his father in the family business when he finished school. His business administration studies were undertaken toward that end. The store is open from 7:00 A.M. until 11:00 P.M. and will continue in that fashion if Mr. Montoya can keep it up. Before his first heart attack, Mr. Montoya ordinarily worked 15 to 16 hours per day. His first illness incapacitated him about nine weeks. He was expecting Frank to relieve some of the load. Earnings from the business were approximately $40,000.00 in 1966, $50,000.00 in 1967, and $44,000.00 in 1968. After Frank's death, Mr. Montoya began working more than usual while trying to get somebody to help him take care of the business. About Easter of 1968, Mr. Montoya suffered his second heart attack, and was forced to leave work for five or six weeks. Since that time, Mr. Montoya has not been able to properly take care of the business. His gross sales rose from $184,429.00 in 1966 to $249,190.00 in 1968 (the last full year prior to trial), but his net profit dropped slightly more than $300.00. Although other factors were involved, Mr. Montoya explained that the trouble was due to his inability to properly manage the business without Frank. Since Frank's death, Mr. Montoya has been unable to find anyone to take his place in the business. Frank's position in the business was very much a family, father-son relationship. Mr. Montoya has been unable to find someone with like responsibility, ability and experience, with the same interest in the business, someone in whom he can place the trust and confidence that he had in his son.

Mrs. Montoya testified that she valued especially the services and personal assistance she and her husband received from Frankie, including relieving her husband of the pressures of his business. Nevertheless, she did not doubt that if she ever needed monetary assistance, it would be forthcoming. Mrs. Montoya has no business experience. Frank had always been willing to help when needed, and when Mr. Montoya became ill, he assured her that he would go to work and help her support three younger children, if necessary.

The evidence shows that Mr. and Mrs. Montoya each was 51 years of age and had been married to each other since 1943. The parties stipulated that for the purposes of this suit it could be assumed that in reasonable probability Mr. Montoya had a life expectancy of 15 years and Mrs. Montoya of 27.7 years.

The testimony in this case reflects that Mr. Montoya had built a successful business but was in ill health and could not properly manage his enterprise as before. Frank Montoya since childhood had assisted his father in the business and was about to complete his formal education and assume more of the load of management which his father could no longer bear. The ability and willingness of the son to assist his parents and their need for such assistance was overwhelmingly shown and not controverted by any evidence. Appellees' argument in connection with the jury findings on the damage issues is largely based upon some of the answers given by Mr. and Mrs. Montoya (mostly in response to questions by counsel for appellees) to the effect that Frank and the other boys had not contributed monetarily to the parents and that during the life times of the parents they would continue to control the business and would probably earn and accumulate more than their children. While these factors may be considered in connection with determination of the damage issues, they do not prevent recovery by the parents upon a proper showing for loss of pecuniary benefits on account of their son's labor and his service and attention in ministering to the wants and necessities of the parents.

The value in dollars and cents of pecuniary benefits in money, property or services which appellants would have received from their son during his lifetime, had he not been killed in the accident in question, is within the particular province of the jury. However, in this case the evidence unquestionably justified a finding for some amount in favor of the parents. After considering all the evidence herein we have concluded that the jury answers of zero to special issues 1 and 2 are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. We are unable to find any reasonable basis in the evidence upon which we can sustain the jury's answers to the damage issues when they are considered in the light of appellants' contentions of factual insufficiency. Most of the Texas decisions concerning recovery of damages by parents for the death of an adult child involve the question of excessiveness of the award rather than its inadequacy. In connection with the subject generally, see Anderson v. Broome, 233 S.W.2d 901 (Tex.Civ.App., El Paso, 1950, n. w. h.), upholding award for $5000.00 in favor of parents for death of 19 year old son; Marcus v. Hughley, 37 S.W.2d 1100 (Tex.Civ.App., Dallas, 1931, wr. dism.) upholding award for $2500.00 in favor of parents for death of 27 year old daughter; Galveston, H. & S. A. Ry. Co. v. Leifeste, 8 S.W.2d 764 (Tex.Civ.App., San Antonio, 1928, affirmed 22 S.W.2d 1061, Tex.Com. App., 1930, judgment approved) upholding award for $7500.00 in favor of parents for death of 25 year old son. See also Kansas City Southern Railway Company v. Caruso, et al. (5 C.A., 1968), 387 F.2d 602, involving an appeal from the U. S. District Court for the Eastern District of Texas. In the last-cited case the court sustained an award for $5000.00 in favor of the parents of a married son (in addition to an amount of $5,114.38 for medical, hospital and funeral bills) and in part held as follows:

The evidence is clear that, after his marriage, Sam Caruso, Jr., had not made any financial contribution to his parents. On the other hand, there was ample evidence to support the jury's finding that in all reason the parents could expect financial benefits from the continuing in life of their son, especially in light of the testimony that plans had been at least tentatively made for the father and son entering into business together. This satisfies the Texas decisions entitling the parents to a recovery even after the son is an adult and is married. With respect to the judgment for out of pocket expenses, the amount of these was stipulated and in light of the stipulation and in light of the liberal rules of federal pleading, we find no error in the entry of judgment for this amount in favor of the appellees."

Appellant's points 14 and 16, which assert that the jury answers to the damage issues are against the overwhelming weight and preponderance of the evidence and that they are entitled to a new trial, are sustained. In view of this holding, appellants' remaining points need not be discussed.

The judgment of the trial court will be reversed and the cause remanded for new trial.