
                                          NO. 07-11-0151-CV

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL B

                                          SEPTEMBER 18, 2012


                                    _____________________________


                               EDNA SCHMIEDING and WILLIAM SCHMIEDING,


                                               Appellants
                                                  v.


                                  MISSION PETROLEUM CARRIERS, INC.,


                                                Appellee
                                    _____________________________

                            FROM THE 274TH DISTRICT COURT OF COMAL COUNTY;

                        NO. C2008-1013C; HONORABLE DIBRELL WALDRIP, PRESIDING
                                    _____________________________

                                          Memorandum Opinion
                                    _____________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Edna Schmieding and William Schmieding (the Schmiedings) appeal from a  judgment  denying  them
recovery from Mission Petroleum Carriers,  Inc.  (Mission).   They  had  sued  Mission  for  injuries
arising from an automobile collision with a Mission employee.  When asked to  determine  culpability,
the jury found that the employee was not negligent but that Mission was.  However,  the  trial  court
entered judgment on behalf of Mission upon concluding that it could not be negligent if its  employee
was not negligent.  The Schmiedings appealed the judgment via seven issues.  We affirm.
      Issue One  – Negligent Retention
      We are first told that the trial court erred because it refused to uphold the  verdict  on  the
basis that Mission negligently hired, supervised or retained the employee involved in  the  accident.
Mission argues that the trial court had no option but to absolve it from liability given the  finding
that its employee was not negligent.  Mission is correct, and we overrule the issue.
      Before Mission could be found liable for negligently  hiring,  retaining,  or  supervising  its
employee, the employee must first engage in actionable misconduct.  See Wansey v. Hole, No.  11-0348,
2012 Tex. Lexis 559 (Tex. June 29, 2012) (stating that:  “Though we  have  never  expressly  set  out
what duty an employer has in hiring employees, or said that a negligent hiring  claim  requires  more
than just negligent hiring practices, there is a broad consensus  among  Texas  courts  that  such  a
claim requires that the plaintiff suffer some damages from the foreseeable misconduct of an  employee
hired pursuant to the defendant's negligent practices”); Brown v. Swett &  Crawford  of  Tex.,  Inc.,
178 S.W.3d 373, 384 (Tex. App.–Houston [1st Dist.] 2005, no pet.)  (stating  that  to  prevail  on  a
claim for negligent hiring or supervision, the plaintiff is required to establish not only  that  the
employer was negligent in hiring or supervising the employee, but also that  the  employee  committed
an actionable tort against the plaintiff); Gonzales v. Willis, 995 S.W.2d  729,  739  (Tex.  App.–San
Antonio 1999, no pet.), overruled in part on other grounds in Hoffmann-La Roche Inc.  v.  Zeltwanger,
144 S.W.3d 438, 447-48 (Tex. 2004) (stating that an employer cannot be held  liable  for  negligently
hiring an employee unless the employee committed an actionable tort); Mackey v. U.P.  Enters.,  Inc.,
935 S.W.2d 446, 459 (Tex. App.–Tyler 1996,  no  writ)  (stating  that  an  employer  has  a  duty  to
adequately hire, train, and supervise employees and the negligent performance  of  those  duties  may
impose liability on an employer if the complainant’s  injuries  are  the  result  of  the  employer’s
failure to take reasonable precautions to protect the complainant from misconduct of its  employees);
see also TXI Transp. Co. v. Hughes, 306 S.W.3d  230,  240  (Tex.  2010)  (concluding  that  negligent
hiring should have a similar requirement to negligent  entrustment  cases,  which  require  that  the
employee's negligent conduct harm the plaintiff).
      Issue Two – Negligence Per Se
      Next, the Schmiedings contend that the trial court erred in failing to instruct the  jury  that
the employee’s conduct was negligence per se.  Mission argues that the motor vehicle  statute  relied
upon by its opponent, i.e. Tex. Transp. Code Ann. § 545.151(a) (West 2011), involves obeying  traffic
control signals at an “intersection,” and since the collision did not occur at such  a  location,  it
could not provide the foundation for negligence per se.  We  agree  with  Mission  and  overrule  the
issue.
      Per § 545.151, “[a]n operator approaching an intersection (1)  shall  stop,  yield,  and  grant
immediate use of the intersection: (A) in obedience to an official traffic-control device,  including
a stop sign or yield right-of-way  sign.”   Id.  §  545.151(a)  (emphasis  added).   Furthermore,  an
“intersection” is defined as the “common area at the junction of two  highways  .  .  .  .”   Id.   §
541.303(a) & (b).  The collision at bar did not occur within the “common area at the junction of  two
highways,” and the Schmiedings do  not  argue  otherwise  in  their  brief.   Thus,  the  statute  is
inapplicable to the situation at bar.
      Issue Three – Res Ipsa Loquitur
      The Schmiedings next argue that the trial court should have instructed the  jury  on  res  ipsa
loquitur.  Mission contends that 1) the complaint was not preserved and 2) the theory did  not  apply
since res ipsa involves situations wherein the event or injury can only  occur  because  someone  was
negligent and auto accidents can occur even in the absence of negligence.   We  overrule  the  issue.

      The record discloses that at the time the trial court entertained  objections  to  its  charge,
none were made by the Schmiedings about the absence of an instruction on  res  ipsa  loquitur.   This
silence failed to comply with the directive that one must preserve charge error  by  “point[ing]  out
distinctly the objectionable matter and the grounds of the objection.”  Tex.  R.  Civ.  P.  274;  see
Carousel's Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d  385,  404  (Tex.  App.–Houston
[1st Dist.] 2004, pet. dism'd) (stating that merely objecting does not satisfy Rule 274  unless  “the
defect relied upon by the objecting party and the grounds of the objection  are  stated  specifically
enough to support the conclusion that [the]  trial  court  was  fully  cognizant  of  the  ground  of
complaint and  deliberately  chose  to  overrule  it”).    Since  no  objection  was  lodged  by  the
Schmiedings, then they failed to preserve error as mandated by Rule 274.
      Issue Four – Exclusion of Dr. Uribe’s Testimony
      Next, the Schmiedings contend the trial court erred by not  allowing  an  expert  witness,  Dr.
Eduardo Uribe, to testify that Mission’s employee  fell  asleep  while  driving.   In  turn,  Mission
posits that the trial court did not abuse its discretion by excluding the testimony since  it  failed
to exclude alternate theories of causation and the testimony was unreliable.  We overrule the  issue.

      The trial court conducted a hearing to assess Dr.  Uribe’s  qualifications  and  determine  the
content of his testimony.  Thereafter, it said:
      I think he can say -- he can exclude fainting or loss of consciousness because of leg  injuries
      or loss of blood. He does go on to clarify that on page 19 as well. I don't think I'm going  to
      --I'm not going to allow him to testify about saying that on this occasion he fell asleep.  I'm
      not going to allow Dr. Uribe to testify that he  steered  his  truck  after  he  awakened  from
      hitting a curb. I'm not going to allow him to testify one  way  or  the  other  about  a  heart
      attack. In other words, I don't think he can testify
      that he can exclude heart attack.
and:
      This   is   what   I   said   in   regard   to   Uribe,   that   plaintiffs'    expert    Uribe
      would be allowed to opine that [the employee] did not faint or lose consciousness due  to  loss
      of blood or injury to the leg.  And he's allowed  to  opine  that  [the  employee]  was  sleep-
      deprived -- and basically that comes out of the records. He's allowed to opine that he suffered
      from chronic back pain, as well as other facts from the medical records. He's  not  allowed  to
      opine that he actually fell asleep on the date and time in question. I don't understand how  he
      could do that, but not allowed to opine that he excludes heart attack because one day  he  said
      it could have been and one day he said it couldn't have been.


 and:
      Then not allowed to opine that [the employee] was awakened after  hitting  the  curb  and  then
      steered his vehicle before colliding. I don't understand that conclusion either, but -- but  my
      point, though, is to what I've told you he can opine, if he looked at the same records -- if --
      if you want your expert to opine that he didn't faint based in part on the  same  records,  why
      can their expert not make the same conclusion –


and:


      That's what his opinion was.  I mean -- and I looked at the records  or  the  report  that  you
      showed me yesterday. Precisely Dr. Uribe says on two different occasions -- one time he says he
      did not faint due -- or lose consciousness due to leg pain or injury to the leg.  And  then  on
      another occasion he says due to loss of blood.


To such comments, counsel for the Schmiedings interspersed such utterances as: 1) “I'm good with  all
of that,” 2) “Well, I wasn't quite sure about your ruling with Dr. Uribe …,” and 3) “. . . so his  --
his -- his testimony is restricted to him saying that -- that he does have an opinion  that  --  that
he fainted because of -- of a leg injury? I don't know  that  he  was  going  to  say  anything  else
anyway, but forget it.”  Then, the Schmiedings opted not to call the doctor.
      The foregoing  evinces  no  objections  to  the  trial  court’s  ruling.   Rather,  it  can  be
interpreted as illustrating that the Schmiedings were “good” with or accepted the decision.  And,  if
they had no objections to it below, they cannot complain about it on appeal.
      Next, and to the extent that the Schmiedings  suggest  that  the  expert’s  opinion  about  the
employee falling asleep immediately before or during  the  collision  was  founded  upon  a  reliable
premise, we must disagree.  It may well be, as they allege, that the employee suffered  from  chronic
back pain and had a history of sleep difficulties.  It may be that being unable  to  sleep  at  night
may cause one to fall asleep during the day.  Yet, one cannot rationally deduce  from  the  fact  the
employee had a history of sleep difficulties that he  was  tired  on  the  day  of  the  accident  or
immediately before or during the accident.   Nor  can  one  logically  deduce  that  having  problems
sleeping meant the employee must have fallen asleep immediately before or during the accident.    So,
the trial court could well have found the expert’s opinion unfounded or unreliable.
      Issues Five, Six and Seven – Gross Negligence and Evidence of Damages
      Via their last three  issues,  the  Schmiedings  contend  that  the  trial  court  should  have
submitted an issue regarding whether Mission acted with gross negligence  and  should  have  admitted
various testimony regarding their damages.  We overrule each contention.
      As for the matter of the gross negligence instruction, we  reiterate  that  Mission’s  employee
was absolved of negligence by the jury while Mission was absolved of negligence by the  trial  court.
Given those circumstances, and our inability to conclude that the trial court erred in  so  absolving
Mission, we are unable to see how an issue on gross  negligence  was  appropriate.   Simply  put,  if
Mission’s conduct did not constitute negligence,  that  same  conduct  can  hardly  constitute  gross
negligence.
      As for the evidentiary matters concerning damages, we need not consider them.  The  issues  are
irrelevant since Mission was not found to be liable  for  any  misconduct  upon  which  an  award  of
damages can be based.
      Accordingly, we affirm the judgment of the trial court.[1]


                                        Brian Quinn
                                        Chief Justice






-----------------------
      [1]Based on our disposition of the Schmiedings’ appeal, we need  not  address  Mission’s  cross
issues.





