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White v. Sullens3/14/1996
This is a personal injury case in which a police officer, standing outside his patrol car, was struck by an intoxicated, hit and run driver. A jury found the driver, James Wesley White, negligent and awarded the plaintiffs, Daniel Sullins and his wife, actual and exemplary damages. On appeal White raises four points of error complaining the trial court erred in denying him both a comparative negligence submission, and a trial amendment raising comparative negligence, and there was no evidence or insufficient evidence to support either the jury's finding of gross negligence or its awards of actual and exemplary damages. We overrule all of White's points of error because he had not pleaded comparative negligence, the trial court acted within its discretion in denying a trial amendment, and the evidence was legally and factually sufficient to support the verdict.
At about 1:30 a.m. on June 27, 1992, Officer Sullins was patrolling for the City of Lumberton when he stopped to inquire about a pedestrian he saw walking along U.S. 96. Another Lumberton police officer, Gary Spencer, heard Sullins's radio call and went to Sullins's location to check on him. Spencer saw Sullins's patrol car, with its driving lights and emergency lights burning, ahead of him, and Sullins standing in front of his patrol car talking to the pedestrian. Sullins had parked his patrol car partially on the road's shoulder and partially on a driveway which entered Highway 96. Spencer turned around and slowly drove back past Sullins, intending to turn again and pull in behind Sullins's car. At that point he saw White drive past Sullins's car and heard glass breaking followed by a thud and the scream of someone in pain. Damage to both cars revealed White had sideswiped the patrol car before hitting Sullins. As White drove away Spencer saw Sullins lying on the road. After checking on Sullins, and getting no response, Spencer chased down White and arrested him. An hour after the accident White was tested and found to have a blood alcohol level of .24 percent.
In his first two points White complains the trial court erred in refusing to submit Sullins's comparative negligence and to permit him to file a trial amendment alleging that defense. White contends he was entitled to amend and to a comparative submission because the issue had been tried by implied consent, Tex R. Civ. P. 67, and because plaintiffs had not demonstrated they were surprised or prejudiced by the amendment. Tex. R. Civ. P. 66. We reject both contentions because it does not clearly appear from the record Sullins's comparative negligence was tried by consent, and the trial court acted within its discretion in denying a trial amendment which would have raised an affirmative defense not timely pleaded.
In support of his first two points White contends his, Sullins's, and Spencer's testimonies were evidence Sullins negligently stepped in front of White's car, and that plaintiffs' failure to object to that evidence constituted trial by consent to the unpleaded defense. White describes his own testimony as proof he did not leave the road; thus, implicitly, Sullins stepped in front of White's car. In fact, White could not testify what occurred and only testified how he had driven in the past. Sullins admitted he was aware of the risk imposed by drunk drivers and it would have been safer for him to have pulled his patrol car off the road, but his testimony did not show that doing so would have left him less exposed to being struck by a drunk driver. Spencer testified he saw Sullins and the pedestrian standing in front of the patrol car, but it would not have been possible for White to strike Sullins while he stood in front of the patrol car, so it was poss
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