dissenting.
This is a charge error case in which we fail to follow well-established precedent. What is the proper disposition if, after reviewing charge error preserved by the defendant, we determine there is no proper verdict upon which the plaintiff has shown itself entitled to relief? We are supposed to render judgment that the plaintiff take nothing on that claim. Because we do not, I dissent.
No Verdict That Will Support a Judgment for the Plaintiff
In this case, the Court properly determines there was error in the charge to which Builders Transport objected. The Court properly determines the error was harmful. The Court then properly reverses the trial court’s judgment. But the Court errs in remanding the case for a new trial.
The plaintiffs in this case do not get a new trial if Builders Transport preserves harmful charge error. A new trial would be the proper result if the plaintiffs had also made the objection and had properly brought an issue on appeal in their own interest. But they did not.
The proper result, when a defendant objects to the charge with the result being that the plaintiff has failed to secure a verdict upon which a judgment can be based, is to render judgment for the defendant. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 530 (Tex.1997); Stripling v. McKinley, 746 S.W.2d 502, 505 (Tex.App.-Dallas 1988), aff'd, 763 S.W.2d 407 (Tex.1989).
Defective and Omitted Analysis On Direct Negligence Claim
The situation as presented by the Court under its heading of “NEGLIGENCE” is a gross over-simplification of the analysis necessary to resolve the issues presented. This problem comes from the Court’s having stepped off the analysis on the wrong foot. They start at the end rather than the beginning.
The real issue here is not whether there is sufficient evidence to support any of the negligence theories Smith went to the jury on under the broad form submission. If we get to that question at all, it is the last question, not the first. We must begin the analysis, the first step, with the charge. *16The special question and related instructions in the charge must be accepted as the controlling law for the case, against which the sufficiency of the evidence will be measured. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). The Supreme Court has recently reaffirmed the position that we do not need to determine whether the charge accurately stated the law, absent an objection to the charge. Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 618 (Tex.2004).
But the majority of this Court states: “Because the trial court submitted a broad-form negligence question, the verdict must be upheld against a sufficiency challenge if the record contains sufficient evidence to support a finding on any one of these theories.” Majority op., at p. 6. Smith, and a majority of the Court, relies upon Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 160 (Tex.1995). This case is not on point because in Prudential there was no objection to the charge. And this is an accurate statement of only part of the applicable law. This is the step on which the Court starts but it should be the third step, depending on the answer to the second step.
So, in a proper analysis, the charge is the first step. Next, the second step, is to analyze the objections to the charge. This is where the Court’s opinion falls apart analytically. Because Builders Transport objected to the charge, we do not accept the charge as an accurate statement of the law and must determine whether the objections should have been sustained because the charge was an improper statement of the law, thus requiring correction by the trial court.
This is the part of a proper analysis that the Court misplaces in its opinion. The Court must address this critical step in a proper sequence. Builders Transport directs our attention to the shortcomings in the charge that were brought to the trial court’s attention by way of its objections to the charge and its request for certain additional instructions to be included in the charge. Builders Transport argues that the charge is defective because elements of some of the theories were omitted from the charge. The Court addresses these complaints in the section of its opinion entitled “NEGLIGENCE CHARGE” beginning on page 7 of its opinion. And the Court’s analysis properly concludes that the issue was preserved by objection. Further, the Court properly concludes that the charge was defective because it omitted necessary instructions regarding the elements of the plaintiffs theories of negligence. See Majority op., at pg. 9.
Smith recognizes the validity of these arguments and attempts to overcome them. First, Smith argues the objection does not comport with the issue on appeal. As stated above, the issue here was preserved and is properly presented as charge error. Second, Smith argues that if the objection does comport, the objection to a defective instruction only applies to one theory being submitted by the broad form question. Smith then argues “if this court were to find any element missing under either [theory], this court must deem a finding on the omitted element that supports the trial court’s judgment if there is some evidence that supports the issue.” Appellee’s Brief, pg. 31. This is where Smith and the majority go astray.
Smith fails to recognize that the implied finding analysis is only applicable if there is no “request or objection” to the omission from the charge. Tex.R. Civ. P. 279; There was a request or objection. This brings us squarely within Crown Life v. Casteel’s, and its prodigy’s, application to a broad form submission when the broad *17form question submits an invalid theory. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex.2000).
Because there is a request or objection regarding the omission of an element of one of the theories being submitted under a broad form negligence charge, Smith has a real problem. The jury’s affirmative finding could be based upon a ground that was defectively charged due to an omitted element. Upon appeal we are unable to determine whether the jury found on that defectively submitted ground or a properly submitted ground. Builders Transport is entitled to relief. But at least for now this is a problem a majority of this Court is willing to ignore. I am not. The majority can avoid this ultimate resolution of this issue because it took the arguments in the wrong order. The majority took the third step first. The fact that a broad form submission includes a proper theory of negligence is irrelevant if it is joined with a defectively submitted theory to which a complaint was made. Crown Life, 22 S.W.3d at 389.
Defective and Omitted Analysis on Vicakious Liability
The majority also makes the same error in its analysis of whether Builders Transport is vicariously liable for Landry’s negligence. Here again the majority gets the analysis out of order. Only after analysis that there was evidence to support the answers to the charge as submitted on vicarious liability does the Court move to its analysis of the objections to the charge. The Court again holds that Builders preserved the issue for review, that the charge was defective as submitted, and that the defective submission harmed Builders Transport.
Reverse and render is the proper result. There is no need to remand.
Relying on Torrington, the Court concludes that because they needed to clarify the manner of submitting the issue, we should remand for a new trial.
But it is already well-settled law that Landry had to have actual or apparent authority to invite Smith to ride with him before Builders Transport could be vicariously liable for Landry’s negligence. It was part of the Restatement (Second) of Agency in 1958. See Restatement (Second) of Agency § 242 (1958). And it has been applied by this Court at least as early as 1944. See Thomas v. So. Lumber Co., 181 S.W.2d 111, 114-15 (Tex.Civ.App.-Waco 1944, no writ). Unlike Torrington, there is no law that we are altering or clarifying. Torrington Co. v. Stutzman, 46 S.W.3d 829, 840 (Tex.2000). Thus, we should render, rather than remand, this proceeding. See id.
Trespasser — Duty Owed?
You may find it strange that the duty owed to a trespasser is discussed by the majority under each section, negligence and vicarious liability. I did. Builders Transport only briefs this as part of its complaints about the negligence finding and charge.
The importance of this issue should not go unmentioned though it serves no useful purpose for me to go into an exhaustive analysis because I would reverse and render for other reasons. But, as I understand Builders Transport’s argument, a person riding in a truck without permission of the owner is a trespasser. And, the argument continues, as a trespasser the owner only owes that person the duty to not actively engage in the activity that caused the trespasser’s injury. Thus, Builders Transport’s argument is that they are not liable for Landry’s negligence because they were not actively engaged in a *18“negligent activity” that caused the injury to Smith.
The majority summarily dismisses this “negligent activity” argument with the statement: “Appellees’ negligence theories do not fit within this definition.” Majority op., pp. 10-11. And somehow this dismissive response is supposed to resolve the issue. But this response is precisely why Builders argues, in addition to the argument addressed by the majority, that the charge was defective. Indeed, Builders argues the duty that should have been charged is precisely as the majority states it: “The only duty an owner owes to a trespasser is ‘to refrain from causing injury willfully, wantonly, or through gross negligence.’ ” Majority op., pg. 12.
This is an entirely different argument as to why the charge was defective on the negligence theories, an argument that the majority has failed to properly analyze and resolve.
Conclusion
Accordingly, I would reverse and render judgment that Grice-Smith et al, take nothing from Builders Transport on either the theories of negligence or vicarious liability. Because the majority remands for a new trial, I respectfully dissent.