Affirmed and Opinion Filed October 2, 2014




                                            Court of Appeals
                                                              S     In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-13-01002-CV

                                        DOUGLASS WENTWORTH, Appellant
                                                    V.
                                            LARRY WELSH, Appellee

                                   On Appeal from the County Court at Law No. 3
                                               Dallas County, Texas
                                       Trial Court Cause No. CC-09-02448-C

                                            MEMORANDUM OPINION
                                               Before Justices Francis and Myers1
                                                  Opinion by Justice Francis
           Douglass Wentworth appeals the trial court’s take-nothing judgment, rendered on a jury

verdict, on his negligence claim arising from an automobile collision. In his sole issue, appellant

contends the trial court reversibly erred by refusing to instruct the jury on the “original tortfeasor

doctrine” and by giving a sole proximate cause instruction. For reasons that follow, we affirm.

           In March 2007, appellant was traveling on the west-bound access road near Galleria Mall

when his car collided with a vehicle exiting the parking garage and driven by Larry Welsh. At

trial, appellant and appellee gave different versions as to how the accident occurred. Appellee

testified he stopped before entering the access road, looked both ways, and saw appellant’s car

     1
        Justice David Lewis participated in the oral argument of this case but did not participate in the issuance of this opinion. See TEX. R. APP.
P. 41.1(b).
“far enough away” in the far left lane. Appellee said he turned right into the lane closest to him

and then felt the cars “hit each other.” At the time of the impact, appellee had come out of a

“dead stop” and was making a “slow right turn” at only a mile or two an hour. Appellee said the

two cars “scraped” each other. Appellee’s vehicle sustained damage to the side front bumper, but

did not break the headlight; appellant’s vehicle was scraped five to six feet along the passenger

side. Photographs of the vehicles were admitted into evidence. Appellee said his wife, Sharon,

was a passenger in his car, and neither was injured.

       After the crash, appellant got out of his car, walked over, and the two men inspected their

vehicles. Appellee called the police, who asked whether there were any injuries or major

damage. When told there was not, the police told the parties to exchange information and leave

the scene, which they did.

       Sharon Welsh’s testimony corroborated her husband’s. She said appellant was in the far

left lane and “was not a threat” when her husband began exiting the parking garage. She said the

collision occurred in the right lane after her husband completed the turn. She said appellant did

not appear to be injured after the crash but was “in a hurry, like [he] needed to get somewhere”

and was “[a]nxious to exchange information and move on.”

       In contrast to the Welshes’ testimony, appellant denied switching lanes. He said he was

traveling in the right lane when appellee exited the parking garage and “T-boned” him. He said

impact from the crash “jerked” his body and he hit his head on the interior of the car. At the

scene, he said he was “dizzy and stunned” and “just wanted to get home.” He testified he

suffered memory loss for a month or two after the accident and still suffered from neck pain that

he attributed to the accident.

       Appellee contended appellant’s medical records, dated six weeks after the accident,

contradicted that claim. The particular record was a form, filled out by appellant, from Phillips

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Family Chiropractic. Appellant handwrote that his neck had been hurting for one week, and he

attributed the onset of his symptoms to a “Bad Dr. Visit.” Evidence showed appellant was

treated at Chirocare a week earlier.

           At the charge conference, appellant requested an instruction on the “original tortfeasor

doctrine,” and appellee requested an instruction on new and independent cause. The trial court

denied both but, over appellant’s objection, included a sole proximate cause instruction.                                                      The

trial court submitted the case to the jury in a broad-form charge. Question 1 asked: “Did the

negligence, if any, of LARRY WELCH proximately cause the occurrence in question?”

Definitions of ordinary care, negligence, and proximate cause preceded the question.                                                           The

proximate cause definition included the instruction on sole proximate cause. Question 2 asked:

“What sum of money, if paid now in cash, would fairly and reasonably compensate DOUGLASS

WENTWORTH for the injuries, if any, that resulted from the occurrence in question?”

Instructions regarding the elements of damages and pre-existing bodily condition followed.

           During deliberations, the jury sent out three notes. The first asked for the photograph of

appellee’s car, which the trial court provided. The second asked whether the jury needed to

answer Question 2 if it answered “no” to Question 1. The record indicates the trial court

answered “no.” The last note asked the court to “define the occurrence in question” and asked

“[d]oes the occurrence refer to the car accident or neck injury?” The trial judge defined the

occurrence in question as the car accident, and counsel for both parties agreed.2 Thereafter, the

jury returned its verdict, answering “no” to the liability question.



     2
        Our record does not contain the written question and answer; however, the reporter’s record contains the discussion between the trial
judge and the attorneys on the subject. The trial judge said the jury’s question was “being file stamped,” read the question into the record, and
stated she intended to answer “the car accident” unless someone objected. Neither party objected, and the trial judge said, “Hearing no
objection, that’s what I’m going to write.” After brief discussion, both attorneys then indicated their agreement. In addition to the reporter’s
record, appellant’s brief asserts the trial court instructed the jury that “occurrence in question” referred to “the car accident.” Appellee does not
dispute his assertion; thus, we accept his assertion as true. See TEX. R. APP. P. 38.1(g).




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         In his sole issue, appellant contends the trial court’s refusal to instruct the jury on the

original tortfeasor doctrine and its inclusion of a sole proximate cause instruction is reversible

error.

         A trial court must, when feasible, submit a cause to the jury by broad-form questions.

TEX. R. CIV. P. 277. It is also required to give “such instructions and definitions as shall be

proper to enable the jury to render a verdict.” Id. An instruction is proper if it (1) assists the jury,

(2) accurately states the law, and (3) finds support in the pleadings and evidence. Columbia Rio

Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855 (Tex. 2009). Determining necessary

and proper jury instructions is a matter within the trial court's discretion, and appellate review is

for abuse of that discretion. Id. One way in which a trial court abuses its discretion is by failing

to follow guiding rules and principles. Id. A trial court’s error by refusing an instruction or

giving an incorrect instruction requires reversal only if it “was reasonably calculated to and

probably did cause the rendition of an improper judgment.” Bed, Bath, & Beyond, Inc. v. Urista,

211 S.W.3d 753, 757 (Tex. 2006) (giving incorrect instruction); Columbia Rio Grande

Healthcare, 284 S.W.3d at 862 (refusing instruction). In considering the error, we review the

entire record. See Bed, Bath, & Beyond, 211 S.W.3d at 757; Columbia Rio Grande Healthcare,

284 S.W.3d at 862.

         We begin with appellant’s request for an instruction on original tortfeasor. Appellant

requested the jury be instructed as follows:

         Texas law provides that where one has received a personal injury as a result of the
         negligence of another he can recover all his damages from the original tortfeasor
         for all damages proximately traceable to the primary negligence, including all
         subsequent aggravations or injuries the probability which the law regards as a
         sequence of natural results flowing from the original tort.

         Appellant does not cite this Court to any case in which the above instruction was

included in a jury charge. Regardless, assuming without deciding that such an instruction would


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be appropriate under the facts of this case, there can be no harm. As shown by the plain

language of the requested instruction, the doctrine arises only after a jury has found a party

negligent. Here, the jury failed to find any negligence on appellant’s part; consequently, we

cannot conclude that exclusion of the instruction led to the rendition of an improper verdict.

       Appellant next argues the trial court erred in including an inferential rebuttal instruction

on sole proximate cause in the definition of proximate cause. As part of the proximate cause

definition, the trial court instructed the jury as follows: “But if an act or omission of any person

not a party to the suit was the sole proximate cause of an occurrence, then no act or omission of

any person could have been a proximate cause.”         Assuming the instruction was improper, a

review of the record does not indicate that it probably caused the rendition of an improper

judgment.

       Appellant begins with the premise that the jury could have interpreted “an occurrence”

differently than “the occurrence in question.” From there, he argues a reasonable jury could

have concluded that “an occurrence” for purposes of the sole proximate cause instruction

included the negligence of Chirocare, and “because Chirocare was not a party to this proceeding,

a reasonable jury could have then concluded that they could not find Welsh to be negligent.” We

cannot agree.

       After the jury began its deliberations, it sent a note asking whether the “occurrence in

question” referred to the “car accident or neck injury.” In response to the question and with

agreement of counsel, the trial court instructed the jury that the occurrence was the car accident.

It is not reasonable to believe the jury would thereafter believe “an occurrence” (for proximate

cause purposes) related to the neck injury when answering whether Welsh’s negligence

proximately caused the accident. The evidence showed Chirocare’s involvement in the case was

only as to appellant’s neck injury, and we cannot conclude the jury would have been misled into

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believing the instruction involved Chirocare’s “negligence.” Rather, it is more likely the jury

cleared up any confusion it may have had by asking the court to define the “occurrence in

question.”

         Having reviewed the record in this case, we cannot conclude errors, if any, in the jury

charge probably caused the rendition of an improper judgment. We overrule appellant’s sole

issue.

         We affirm the trial court’s judgment.



                                                       /Molly Francis/
131002F.P05                                            MOLLY FRANCIS
                                                       JUSTICE




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

DOUGLASS WENTWORTH, Appellant                        On Appeal from the County Court at Law
                                                     No. 3, Dallas County, Texas
No. 05-13-01002-CV         V.                        Trial Court Cause No. CC-09-02448-C.
                                                     Opinion delivered by Justice Francis with
LARRY WELSH, Appellee                                Justice Myers participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee LARRY WELSH recover his costs of this appeal from
appellant DOUGLASS WENTWORTH.


Judgment entered October 2, 2014.




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