Burk Royalty Co. v. Walls

Decision Date27 May 1981
Docket NumberNo. B-9439,B-9439
Citation616 S.W.2d 911
PartiesBURK ROYALTY COMPANY et al., Petitioners, v. Sally K. WALLS, Individually and a/n/f and Natural Guardian of Jeffery Paul Walls, Jr., Respondent.
CourtTexas Supreme Court

Groce, Locke & Hebdon, Thomas H. Crofts, Jr., San Antonio, Stan Carter, Wichita Falls, for petitioners.

J. Michael Smith, Gilmer, Clifton L. Holmes, Kilgore, for respondent.

SPEARS, Justice.

This suit for exemplary damages was brought by respondent Sally Walls, individually and as next friend and guardian of Jeffery Paul Walls, Jr., her minor son, against the employer of her deceased husband, Jeffery Paul Walls. Mrs. Walls alleged that both the employer, Burk Royalty Company, through its district superintendent, Kenneth Swetnam, and Swetnam, individually, were grossly negligent. Having already received workers' compensation benefits, this suit for exemplary damages was brought by Mrs. Walls pursuant to article XVI § 26 of the Texas Constitution and a statute, article 8306, § 5. 1 Judgment was rendered for the Walls based on the jury's verdict. The court of civil appeals reformed the amount of the judgment but remanded the cause to the trial court to allocate the award between Mrs. Walls and her son. 596 S.W.2d 932. We affirm the judgment of the court of civil appeals.

The principal question presented is whether there is some evidence to support the jury's finding that Kenneth Swetnam was grossly negligent on the occasion in question. Since Burk Royalty concedes that Swetnam was a vice-principal, if the jury finding is supported by some evidence, Burk Royalty is also liable for exemplary damages. Underlying issues concern the definition of gross negligence and the standard of review of gross negligence jury findings. A third point concerns broad submission of negligence issues.

The deceased, Jeff Walls, was an employee of Burk Royalty on November 8, 1974, when he was burned to death at an oil well site in Rusk County. The fatal fire occurred while he was working as a member of a four-man crew pulling wet tubing from an oil well so that the pump at the bottom could be replaced and production restored. Walls was working on the tubing board or derrick board about twenty-five feet up in the derrick above the floor of the well. Before work had begun that day, Billy Lay, Burk's operator in charge of the well, had intended to get in his truck and look for Boyd Ehl, the toolpusher in charge of the crew, to find out how they should remove the fluid that would be trapped in the tubing (wet tubing) held in by the standing valve at the bottom of the tubing. In the meantime, Swetnam drove up to deliver the crew's paychecks, and Lay asked him instead.

Swetnam was Burk Royalty's District Superintendent in charge of all the company's operations in the East Texas area including safety for that district. Lay suggested that an explosive charge be dropped in the well to blow a hole in the tubing and let the fluid drain out at the bottom, a process called "shooting the tube." However, Swetnam told Lay not to use that method, but rather to pull the tubing until they reached fluid, then "swab" the remainder of the tubing in the hole into the "cellar" from which it was to be hauled off by truck. During the conversation, Swetnam said nothing about safety. He remained in his car and did not check for fire extinguishers or any other safety equipment.

After Swetnam left, the crew began pulling tubing. Walls' job up on the tubing board was to take the 30-foot sections ("joints") of pipe as they were pulled up and place them in a rack. He had a safety belt strapped around his shoulders and waist and attached to the derrick to prevent his falling. David Barnes and Stephen Van Meter, two other crew members, were working on the floor directly below the tubing board. Billy Lay was working from the "goat stand" on the rig where he operated the winch (drum) and cable that pulled the tubing up.

The tubing closest to the surface contained no fluid. Shortly before noon after pulling approximately twenty dry joints, the crew reached wet tubing, i. e., full of fluid. Before the next joint could be pulled, some pressurized gas escaped, causing oil to spew out of the tubing up into the derrick, covering Walls' body with oil. Somehow the gas ignited and shot flames like a torch to the top of the derrick, igniting the oil on Walls' body. The fire lasted for about a minute. Walls struggled to get out of his safety belt but couldn't. One witness described Walls "kind of jumping around ... he jumped over to the side, you know, and his clothes and stuff was falling off him. It burned all of his clothes off and he was kicking around a bit." Some of the crew tried unsuccessfully to extinguish the fire on Walls by throwing buckets of water at him. There were no fire extinguishers on the rig. After the fire, Walls' body hung in mid-air, suspended by his safety belt, until taken down two hours later.

Special issue No. 1 submitted to the jury asked: "Do you find from a preponderance of the evidence that on the occasion in question Kenneth Swetnam failed to follow approved safety practices for pulling wet tubing?" The jury answered "Yes." The jury next found that such failure was negligence and a proximate cause of the occurrence in question. After finding substantial actual damages for the widow and son, the jury found in special issue No. 8 that on the occasion in question, "the failure of Kenneth Swetnam" was gross negligence. In the instruction accompanying this issue the jury was instructed:

You are instructed in connection with the foregoing Special Issue that "gross negligence" is the exercise of so little care as to justify the belief that such action was a heedless and reckless disregard to the safety of Jeffrey Paul Walls and others.

"Heedless and reckless disregard" means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to indicate that the act or omission in question was the result of conscious indifference to the rights, welfare, or safety of the persons affected by it.

This instruction is not attacked here by the defendants although the court's general submission of the negligence issue is attacked. In special issue No. 9, the jury found exemplary damages of $150,000, which the court of civil appeals reformed to $100,000 to conform to plaintiffs' pleading.

The court of civil appeals held that there was some evidence to support the jury's finding of gross negligence. The court further held that there was some evidence that defendant's negligence was a proximate cause of Walls' death in that Swetnam failed "to have available at prescribed positions the two (2) fire extinguishers prescribed by paragraph No. 14 of the company safety rules." 2

Burk Royalty and Swetnam here contend that there is no evidence of such an entire want of care on the part of Swetnam as would amount to conscious indifference and support an award of exemplary damages. They argue that although Swetnam was in charge of safety, it was not his responsibility to actually perform the task of positioning the fire extinguishers. Further, they say, there is no evidence that Swetnam knew or should have known that there were no fire extinguishers properly positioned at the well. They cite a number of cases which hold that if there is "some care" exercised, there necessarily cannot be "an entire want of care," and thus, exemplary damages are improper. Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825 (Tex.1964); Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943); Loyd Electric Co. v. DeHoyos, 409 S.W.2d 893 (Tex.Civ.App. San Antonio 1966, writ ref'd); Delgadillo v. Tex-Con Utility Construction, Inc., 526 S.W.2d 208 (Tex.Civ.App. Dallas 1975, writ ref'd n. r. e.). They contend that since there is evidence in the record that Swetnam exercised "some care" there is no evidence of an entire want of care, justifying an award of exemplary damages.

The traditional standard to be applied by an appellate court in testing a "no evidence" point is for the court to consider only the evidence, when viewed in its most favorable light, that tends to support the jury's finding of gross negligence and to disregard all evidence leading to a contrary conclusion. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); see Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.Law Rev. 361 (1960).

To determine whether there is some evidence to support the jury's finding of gross negligence, we will first examine the definition of gross negligence. Second, we must discuss our standard of review in gross negligence cases. The development of the concept of gross negligence in Texas has been somewhat confusing. Various definitions have been approved by the courts depending on the type of case involved. A discussion of the concept's historical development and the gross negligence definitions used by the courts will be helpful in arriving at the correct definition of gross negligence and its application in this workers' compensation case.

1. Texas Railroad Statute Period.

Under the common law, a cause of action for personal injuries resulting in death terminated upon either the death of the victim, or the wrongdoer. 22 Am.Jur.2d Death § 1 (1965); 17 Tex.Jur.2d Death by Wrongful Act § 2 (1960). Because the rule created such a great hardship, legislation modifying, and even abrogating, the rule began to appear around the middle of the 19th Century. 22 Am.Jur.2d Death § 2 (1965). The first such statute was Lord Campbell's Act, passed in England in 1847. See Annot., Death Act Damages Sentimental Loss, 74 A.L.R. 11, 13-23 (1931). Texas enacted its own version of Lord Campbell's Act in 1860, allowing a suit for the recovery of actual damages to survive a decedent "by reason...

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