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[W] Builders Transport3/9/2005
The surviving relatives of Roy Cell Smith, Jr. (collectively, "Appellees") filed a wrongful death and survival action against Builders Transport, Inc. and its employee John Alfred Landry for damages sustained after a semi owned by Builders Transport and driven by Landry overturned, ejecting Smith who died as a result. A jury found in Appellees' favor and awarded them $4.4 million in damages. Builders Transport contends on appeal that there is no evidence or factually insufficient evidence to support the verdict, that the court improperly charged the jury on Appellees' theories of recovery, and that the jury's award of $1 million for Smith's pain and mental anguish is excessive.
Because the charge failed to require the jury to determine the factual predicates necessary to determine whether Builders Transport was negligent under the theories alleged and because the charge failed to require the jury to determine whether Landry had actual or apparent authority to invite Smith to ride with him, we will reverse and remand.
FACTUAL BACKGROUND
Landry applied for a job with Builders Transport in June 1995. Builders Transport hired Landry after he completed Builders Transport's three-week driver training program and obtained a commercial driver's license. Landry then completed a four-week on-the-job training program, driving under the supervision of other company drivers.
On the occasion in question, Landry was delivering a load of tires to a plant in Houston. When he arrived on a Saturday morning, he learned that the plant was closed for the weekend. He decided to visit his brother in Galveston. While there he came in contact with Smith, a friend of his. Smith asked Landry to take him to Builders Transport's headquarters in Dallas the following Monday so he could apply for a job . Smith also asked him to take Smith's friend Anthony Henry. Although Landry knew that company policy prohibited drivers from transporting passengers, he agreed to take Smith and Henry to Dallas after delivering the tires to the plant in Houston.
Landry consumed alcoholic beverages and narcotics over the course of the weekend. Henry saw Landry drinking a 40-ounce can of malt liquor shortly before they left Galveston. As they were leaving Galveston, the trailer came unhooked. While Landry reconnected the trailer, he asked Smith and Henry to buy him another drink. They got him a 16-ounce malt liquor which Landry drank as they drove to Houston.
The semi overturned as Landry exited the interstate in Houston. Smith was ejected from the cab when it overturned. The semi skidded on its side along a concrete retaining wall and a guardrail for about 200 feet.
The medical examiner opined that the trailer ran over Smith and mangled the lower part of his body as it passed over. The medical examiner testified that Smith was conscious when he was ejected from the cab and lost consciousness sometime thereafter.
Landry pleaded guilty to intoxication manslaughter.
PROCEDURAL BACKGROUND
Smith's wife Loretta Yvette Grice-Smith filed a wrongful death and survival action against Builders Transport and Landry in her individual capacity, as representative of his estate, and as next friend for their three minor children. Smith's parents and the mother of his fourth child were also plaintiffs. Appellees alleged that Builders Transport was vicariously liable for Landry's negligence under the theory of respondeat superior. Appellees alleged that Builders Transport was directly liable for its own negligence under theories of negligent hiring, negligent training, negligent supervision, and negligent entrustment.
The court
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