Dodd v. Texas Farm Products Co.
| Decision Date | 31 January 1979 |
| Docket Number | No. B-7839,B-7839 |
| Citation | 576 S.W.2d 812 |
| Parties | Bernard DODD, Petitioner, v. TEXAS FARM PRODUCTS COMPANY, Respondent. |
| Court | Texas Supreme Court |
Larry R. Daves, Tyler, for petitioner.
William Drew Perkins, Luflin, for respondent.
The issue to be resolved in this case is whether or not the trial court erred in granting the defendant's motion for judgment notwithstanding the jury verdict. Suit was instituted by Bernard Dodd, plaintiff in the trial court, against Texas Farm Products Company ("Texas Farm"), defendant below, for personal injuries sustained while working on the premises of Texas Farm. The case was tried to a jury, which found in favor of Dodd, awarding him damages in the amount of $86,000. The trial court, however, granted Texas Farm's motion for judgment Non obstante veredicto and rendered a take-nothing judgment against Dodd. The court of civil appeals affirmed the judgment of the trial court, holding that there was no evidence to support the jury finding of Texas Farm's negligence. 567 S.W.2d 919. Because we find that there was some evidence to support the jury findings, we reverse the judgments of the court of civil appeals and the trial court and render judgment on the jury verdict for Dodd.
At the time of the accident, Dodd was an employee of Lone Star Phosphate Company ("Lone Star") in Nacogdoches, Texas. Lone Star and Texas Farm are closely related, having common officers and stockholders. The two companies are located on lots adjacent to each other and are physically connected by a common shed approximately two hundred yards long. Lone Star produces phosphate which Texas Farm buys and uses to make fertilizer. Texas Farm is Lone Star's only customer. After the phosphate is produced at Lone Star, it is transported under the common shed over to the Texas Farm fertilizer plant where it is stored in bins.
On Friday, April 13, 1973, the day of the accident, Dodd reported to Lone Star for his regular work shift, which ran from six o'clock in the morning to two o'clock in the afternoon. 1 About nine o'clock, McShan, Dodd's foreman at Lone Star, asked him if he would go next door to the Texas Farm premises to move some sulfate that was in one of the storage bins. Dodd said that he would do so. Dodd then went over to Texas Farm with McShan.
Sulfate is a salt-like material that becomes tightly compacted when left in storage. In order to move the sulfate, a low grade, slow-burning dynamite was detonated to loosen and break it up. The explosive was referred to as powerful and dangerous. The testimony concerning the dynamite was that Dodd could obtain the dynamite from storage only when he was told by one of his bosses to do so. In order to detonate the dynamite, an auger-like rod first was used to drill a hole in the sulfate. Ten to twelve sticks of dynamite would then be put in the hole, with a blasting cap on one of the sticks. Wires would then be attached to the blasting cap and the battery on a tractor, which would be used to detonate the explosive. The explosive was not only powerful, but also sometimes erratic. As Dodd noted, "It'll blow if it don't catch in there just right, it can blow that stuff from here to the back side of this court house." After the dynamite had been exploded, the loosened sulfate was then loaded by tractor with a front-end loader. On the instance in question, Dodd and his Lone Star foreman, McShan, placed a string of explosives in the hole they had drilled in the compacted sulfate. The dynamite was then detonated. For some unknown reason, the dynamite did not explode as planned. To quote Dodd,
It is important to note here that the sulfate material was held in place by an elevated retaining wall of some sort. The wall, apparently made of plywood, was located about fifteen or twenty feet above the ground. Dodd testified that while he was picking up the sulfate, he heard a "pop." Looking up, he noticed that one of the angle iron support rods on the retaining wall was bent, twisted "a good half a round." He directed McShan's attention to this condition of the support for the retaining wall and tried to convince McShan to leave the site and return to the Lone Star plant. In his deposition testimony concerning the safety of the retaining wall after the explosion, McShan stated that he looked at it, inspected it, and concluded: When asked if Dodd said "anything at all about the sulfate falling in," McShan replied, "I couldn't recall right now, to tell the truth." Dodd testified, however, that McShan had agreed to leave the scene after the explosion and their conversation.
At this time, however, Riddle, a supervisor for respondent Texas Farm, and the only Texas Farm employee connected with the accident, came to the site of the aborted explosion. It was under these circumstances and at this point in time that these two supervisors, Riddle of Texas Farm and McShan of Lone Star, had a private conversation out of the hearing of the employee, Dodd. During their conversation, Riddle glanced at the retaining wall, but made no further inspection of it. Following this conversation, McShan returned to Dodd with a complete change of plans. According to Dodd, "(McShan) told me, he came back and told me that he wanted to got (Sic ) ahead and get the sulfate out, and he would knock it down, and would I pick it up." 2 Dodd responded, "If it don't kill you, I don't guess it'll kill me." While Dodd was doing the work as he was told, and as a result of the damage occasioned by the defective blast, the plywood retaining wall and the compacted sulfate crashed in upon him, resulting in extensive personal injuries.
Dodd filed the instant suit and at the trial testified to most of the aforementioned facts. Portions of McShan's deposition were read into the record, but McShan did not personally appear to testify. Riddle, the Texas Farm employee, did not testify either. The jury found that Texas Farm failed to inspect the retaining wall after the blast, that such failure was negligence, and that such negligence was a proximate cause of the accident. 3 The jury assessed Dodd's damages in the amount of $86,000. Upon motion by Texas Farm, the trial court rendered judgment notwithstanding the verdict. The court of civil appeals affirmed. We reverse the decisions of both courts.
To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be...
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