Castleberry v. Goolsby Bldg. Corp., 1585

• Decision Date: 28 October 1980
• Docket Number: No. 1585,1585
• Citation: 608 S.W.2d 763
• Parties: Clarence E. CASTLEBERRY, Appellant, v. GOOLSBY BUILDING CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 763

608 S.W.2d 763

Clarence E. CASTLEBERRY, Appellant, v. GOOLSBY BUILDING CORPORATION, Appellee.

No. 1585.

Court of Civil Appeals of Texas, Corpus Christi.

Oct. 28, 1980.

Rehearing Denied Nov. 20, 1980.

J. Parker McCollough, Law Offices of W. H. Conner, Georgetown, Phil Brown, Amarillo, for appellant.

Cecil D. Redford, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellee.

OPINION

YOUNG, Justice.

In this appeal from the trial court's granting of defendant's motion for summary judgment, Clarence E. Castleberry is plaintiff-appellant and Goolsby Building Corporation is defendant-appellee. Plaintiff brought suit as Administrator of the Estate of Richard Ernest Castleberry, Deceased, and individually as surviving natural parent of the deceased. Plaintiff sought recovery of actual and exemplary damages against defendant for the wrongful death of his son. Defendant answered by way of a general denial and subsequently filed a motion for summary judgment. Defendant's motion for summary judgment was granted by the trial court. We affirm.

Appellant contends on appeal that the motion for summary judgment was improperly granted because: (1) under Tex.Rev.Civ.Stat.Ann. art. 4671 et seq., there existed genuine issues of fact regarding the applicability of the Worker's Compensation Act; and (2) under Tex.Rev.Civ.Stat.Ann. art. 5525, there existed genuine issues of fact concerning the liability of appellee outside the Texas Worker's Compensation Act.

In reviewing a summary judgment, we must examine each theory of recovery to which summary judgment was granted and determine whether the movant has conclusively shown the absence of facts which the non-movant would have to prove to establish that ground. The judgment should be affirmed if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as set forth. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); Billstrom v. Memorial Medical Center, 598 S.W.2d 642 (Tex.Civ.App.-Corpus Christi 1980, no writ); Rule 166-A, T.R.C.P.

A review of the pertinent pleadings of the case shows the following. Plaintiff's petition alleges that certain acts and/or failure to act by defendant constituted gross, willful and wanton negligence, individually and collectively, which negligence was a proximate cause of the injuries and eventual death of decedent. Plaintiff prayed that he and his wife, as beneficiaries under article 4671 et seq., recover the amount of pecuniary loss resulting from defendant's acts and that plaintiff, pursuant to article 5525, recover actual and exemplary damages for injuries proximately caused by defendant's grossly negligent acts.

Defendant's motion for summary judgment, supported by an affidavit from the president of the defendant company, presented the following facts as grounds for granting the summary judgment: (1) at the time of the death of Richard Ernest Castleberry, he was an employee of Goolsby Building Corporation; (2) his death was sustained in the course of his employment for such company; and (3) at the time of Richard Ernest Castleberry's death, Goolsby Building Corporation had in effect a worker's compensation policy.

Appellant contends in his first point of error that the trial court erred in granting a summary judgment since there existed genuine issues of fact regarding the applicability of the Worker's Compensation Act. He argues that appellee had the burden of proving, in his motion for summary judgment, that article 4671 et seq. was not applicable. Before addressing the necessary burdens of proof in summary judgment proceedings, we will examine the statutes attempted to be invoked.

Under Tex.Rev.Civ.Stat.Ann. art. 8306 § 3, an employee who is covered by a worker's compensation policy shall have no right of action against his employer for damages for personal injuries and must instead look solely to the association for compensation. An employee covered by a worker's compensation policy is deemed to have waived his right of action at common law or under any statute of this state to recover damages for injuries sustained in the course of his employment, unless such employee gives his employer notice in writing at the time of his contract for hire that he is not waiving his common law or statutory rights. Tex.Rev.Civ.Stat.Ann. art. 8306 § 3a.

Article 4671, et seq. allows recovery of both actual and exemplary damages when an injury causing the death of any person is caused by the wrongful act of another person or corporation. The wrongful act must be of such a character as would, if death had not...