Cropper v. Caterpillar Tractor Co.

Citation754 S.W.2d 646
Decision Date25 May 1988
Docket NumberNo. C-6076,C-6076
PartiesAnthony Paul CROPPER, Petitioner, v. CATERPILLAR TRACTOR COMPANY, Respondent.
CourtSupreme Court of Texas

Russell H. McMains, McMains & Constant, Corpus Christi, Pat Maloney, Law Offices of Pat Maloney, San Antonio, for petitioner.

David S. Kidder, Eugene W. Brees, II and Debora Beck McWilliams, Thompson & Knight, William Powers, Jr., Austin, for respondent.

WALLACE, Justice.

In this personal injury action, we decide whether a court of appeals has the authority to remand a cause for a new trial when it concludes that a jury's failure to find in favor of a party on a particular issue is "against the great weight and preponderance of the evidence." We hold that a court of appeals has the authority to review a "failure to find" in the same manner in which it may review a jury's findings. TEX. CONST., art. V, § 6. We further hold that this review does not violate the right of trial by jury. TEX. CONST., art. I, § 15.

Anthony Paul Cropper was severely injured while operating a Caterpillar 651B Water Wagon, and brought suit against the Caterpillar Tractor Company (Caterpillar) on theories of negligence and strict products liability. The evidence at trial showed that Cropper was spraying water on an open field in order to keep the amount of dust from his employer's nearby mine at an acceptable level, and ran over the unfolded metal tracks of a backhoe tractor being repaired by another employee. After the water wagon rolled over the tracks, the impact of the wagon's cab returning to the ground forced the operator's chair to bottom out, resulting in a compression fracture of Cropper's lower back and other injuries.

The jury answered all issues favorably to Cropper, including the following defensive issue submitted at Caterpillar's request:

Was ANTHONY CROPPER negligent in the operation of the Water Wagon on the occasion in question?


The trial court rendered judgment on the jury's verdict, awarding Cropper over $2.5 million in actual damages and assessing $250,000 in punitive damages against Caterpillar.

On appeal Caterpillar contended, among other things, that: (1) the jury's failure to find contributory negligence was against the great weight and preponderance of the evidence; (2) the evidence supporting several of the jury's findings was factually insufficient; and (3) the damages awarded by the jury were excessive and not supported by the evidence, thus authorizing the court of appeals to order a remittitur. The court of appeals reversed and remanded for new trial, sustaining the first of these contentions without passing upon the remainder of Caterpillar's points of error. 720 S.W.2d 824.

Although Cropper contends that Caterpillar waived this first contention by failing to assign it as error in its motion for new trial, we find no merit to this argument. Caterpillar contended in its motion for new trial that the jury's negative answer to the above issue was "so against the great weight and preponderance of the evidence as to be manifestly unjust"; and thereby preserved this complaint. TEX.R.CIV.P. 324. We granted Cropper's application for writ of error to consider the following questions:

(1) when a jury refuses to find in favor of a party on a particular fact issue, and that party had the burden of proof at trial on this particular issue, is it within the authority of the court of appeals to review the jury's action in this respect and, upon concluding that the jury's "negative finding" was against the great weight and preponderance of the evidence, remand for a new trial?

(2) if such power exists, does it violate the right of trial by jury?

(3) if such power exists and does not violate the right of trial by jury, was that power properly exercised in this case?

Although these questions are somewhat intertwined, our initial focus is upon the source and parameters of the courts of appeals' jurisdiction over fact questions.


The constitutional origin of appellate court jurisdiction

over fact questions.

The Texas Constitution confers upon the courts of appeals "appellate jurisdiction ... under such restrictions and regulations as may be prescribed by law," and further provides that "the decision of said courts shall be conclusive upon all questions of fact brought before them by appeal or error." TEX. CONST. art. V, § 6. These two clauses have independent significance, and have quite different consequences upon the allocation of jurisdiction between this court and the intermediate appellate courts. The former operates as a general grant of "appellate jurisdiction," and is in fact the only clause in Article V which purports to vest judicial authority in the intermediate courts. The latter, which will be referred to as the "factual conclusivity clause," functions not as a grant of authority to the courts of appeals but as a limitation upon the judicial authority of this court. Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (1898).

In one of the earliest reported decisions of this court, we held that a court operating under a general grant of "appellate jurisdiction" had the power to review fact questions. Bailey v. Haddy, Dallam 376 (1841). Then, as now, the constitution provided that the right of trial by jury should remain "inviolate." REPUB. OF TEX. CONST., Ninth Declaration of Right (1836). That same constitution vested this court with "appellate jurisdiction," just as our present constitution confers such authority upon the courts of appeals. REPUB. OF TEX. CONST., art. IV, § 8. Construing the constitution and related statutes, we explicitly recognized that the grant of "appellate jurisdiction" empowered this court to review both fact and law questions, although we recognized that such powers might not exist in a common law court reviewing a jury-tried case. Dallam at 378. The court concluded that in a jury-tried case, its powers of review embraced those of a common law court as well as a civil law court or court of equity, subject to the restriction that the right of trial by jury should remain inviolate. Id.; see also Republic v. Smith, Dallam 407 (1841) (recognizing that the court could review both the fact and the law questions in a criminal case).

In the fifty year interval between the Bailey decision and the constitutional amendments of 1891, we continued to recognize that this court had the power to review jury verdicts on factual issues. Due to the court's deference to jury verdicts in general, the cases where review actually led to reversal are far less in number than the cases where we merely acknowledged this power of review. Nonetheless, they exist. The cases where this power was apparently exercised include Hall v. Layton, 16 Tex. 262 (1856) appeal after remand 25 Tex. 204 (1860); Garvin v. Stover, 17 Tex. 292 (1856); Chandler v. Meckling, 22 Tex. 37 (1858); Carlton v. Baldwin, 22 Tex. 724 (1859) appeal after remand 27 Tex. 572 (1864); McQueen v. Fulgham, 27 Tex. 464 (1864); Willis v. Lewis, 28 Tex. 185 (1866); Weisiger v. Chisholm, 28 Tex. 780 (1866); Harnage v. Berry, 43 Tex. 567 (1875); Houston & Tex. Cent. Ry. Co. v. Knapp, 51 Tex. 569 (1879); Redus v. Burnett, 59 Tex. 576 (1883); Houston & T.C. Ry. Co. v. Schmidt, 61 Tex. 282 (1884); Dimmit v. Robbins, 12 S.W. 94 (Tex.1889); and Missouri Pac. Ry. Co. v. Somers, 14 S.W. 779 (Tex.1890). In Somers, the court briefly summarized the nature of its authority to reverse jury verdicts on fact issues:

Although this court has the power to review a case upon the facts, and to set aside a verdict which has evidence to support it, that power has been reluctantly exercised. But it is the right and duty of this court to set aside a verdict, when it is against such a preponderance of the evidence that it is clearly wrong.

14 S.W. at 779.

By creating the courts of appeals and vesting them with "appellate jurisdiction," the 1891 amendment to the constitution conferred upon those courts the same power over fact questions that this court exercised prior to that amendment. Choate, 44 S.W.2d at 69-70. Thus, the court below, in reviewing the jury's verdict in favor of Cropper, was possessed of the same powers that this court could previously exercise prior to 1891, the same powers alluded to in Somers. Id. In the exercise of those powers, the court below concluded that "the jury's finding that Cropper was not negligent in his operation of the water wagon was so contrary to the great weight of the evidence as to be manifestly unjust." 720 S.W.2d at 826. Although the court below was technically incorrect in implying that it was reviewing a jury's finding, there can be no doubt that it had the power to reverse and remand unless there is some dispositive distinction between appellate review of "findings" and appellate review of "non-findings" or "failures to find."


The authority of the courts of appeal to review a "non-finding."

In Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), the court recently intimated in dicta that there might be some such distinction between review of findings and nonfindings. While recognizing that the constitution empowers courts to "unfind" a jury's findings, the court observed that it was "more difficult to rationalize" why a non-finding should be reviewable under a great weight and preponderance standard. 715 S.W.2d at 634. This difference between findings and non-findings had previously been described as "a distinction which exists in semantics and theory only but which does not exist in reality." Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985) (Robertson, J., concurring). If there is any inference in Pool that there is a distinction between review of findings and review of non-findings, we lay that question to rest.

In the fifty years of case law preceding the adoption of the 1891 constitutional amendments, this court never once indicated that it lacked the authority to review a jury's "non-finding....

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