Havner v. E-Z Mart Stores, Inc.

• Citation: 825 S.W.2d 456
• Decision Date: 26 February 1992
• Docket Number: E-Z,No. D-0190,D-0190
• Parties: Roger HAVNER, et al., Petitioners, v.MART STORES, INC., Respondent.
• Court: Supreme Court of Texas

Page 456

825 S.W.2d 456

Roger HAVNER, et al., Petitioners, v. E-Z MART STORES, INC., Respondent.

No. D-0190.

Supreme Court of Texas.

Feb. 26, 1992.

Coy Johnson, Sulphur Springs, Robert R. Schwartz, Tyler, Preston H. Dial, Jr., San Antonio, for petitioners.

Alan D. Harrel, Texarkana, Mike Hatchell, Tyler, for respondent.

OPINION

DOGGETT, Justice.

We consider whether, under the facts of this case, some evidence exists to support a wrongful death judgment against a convenience store owner whose employee was abducted from her job and murdered by an unknown assailant. The court of appeals reversed and rendered, holding that there was no evidence that the store's negligently deficient security system was a cause of the employee's death. 797 S.W.2d 116. We disagree, and we reverse the judgment of the court of appeals and remand to that court for further action consistent with this opinion.

Diana Havner was an overnight clerk at a store owned by E-Z Mart Stores, Inc. in Sulphur Springs. While on routine patrol in the early morning hours of August 2, 1987, police officer Jay Owens discovered the store unlocked and Havner missing. The cash register was empty; next to it Owens found a half-drunk cup of coffee and a burned-out cigarette in an ashtray. Havner's purse was behind the counter and her car was parked out front. Materials in and around the oven indicated she had been preparing hamburgers prior to her disappearance. The store was not equipped with any security devices.

Four days later, in an undeveloped residential area, Havner's badly mutilated body was found with her skull crushed, in an E-Z Mart smock, and naked from the waist down. Despite a full police investigation, no arrests or convictions resulted.

Havner's two daughters, her parents and her estate (the "Havners") brought suit against E-Z Mart for damages suffered as a result of her death. In response to questions, the jury determined that the employer's failure to provide a safe place to work was a cause of Havner's abduction, rape and murder; the trial court rendered judgment on the verdict. Finding no evidence, or alternatively insufficient evidence, of causation, the court of appeals reversed and rendered judgment that the Havners take nothing.

I. Jurisdiction

Initially, we must consider E-Z Mart's challenge to our jurisdiction over the Havners' application for writ of error. Although the application was timely filed if measured from the date of the overruling of the Havners' second motion for rehearing in the court of appeals, E-Z Mart contends this second motion was improper. Because the application was not filed within forty days ¹ after the overruling of the Havners' first motion, E-Z Mart asserts it is late, depriving this court of jurisdiction. See Reynolds v. Dallas County, 146 Tex. 372, 207 S.W.2d 362 (1948).

In Honeycutt v. Doss, 410 S.W.2d 772, 773 (Tex.1966) (per curiam), this court, writing on the permissibility of further motions for rehearing in an effort "to put the matter at rest," held that:

when a court of civil appeals hands down an opinion in connection with an order overruling a motion for rehearing, rule 458 authorizes a losing party to file a further motion for rehearing as a matter of right if he deems one necessary, whether or not there is any sound or reasonable basis for his conclusion.

(Emphasis supplied). This refusal to second-guess the need for a further motion for rehearing was reaffirmed in Stoner v. Massey, 586 S.W.2d 843, 845 (Tex.1979) (orig. proceeding). The applicable procedural rule, Tex.R.Civ.P. 458, as it existed at the time of these opinions provided that a further motion for rehearing could be filed whenever the court of appeals issued an opinion in connection with overruling the first motion if "the losing party deems same necessary." The controversy did not end there, however, for in 1981 we amended the language permitting a further motion for rehearing "if the losing party deems same necessary" as follows:

If on rehearing the court of appeals or any panel thereof modifies its judgment, or vacates its judgment and renders a new judgment, or hands down an opinion in connection with the overruling of a motion for rehearing, a further motion for rehearing may, if a party desires to complain of the action taken, be filed within fifteen days after such action occurs. However, in civil cases, a further motion for rehearing shall not be required or necessary as a predicate for a point in the application for writ of error if the asserted point of error was overruled by the court of appeals in a prior motion for rehearing.

Tex.R.App.P. 100(d) (emphasis supplied). This amendment has led cautious practitioners to file motions for extension of time with this court seeking guidance on the permissibility of a further motion for rehearing, or even to file multiple appeals in the same action.

Here, although the Havners' first motion was overruled, the court of appeals changed its opinion on rehearing. E-Z Mart asserts a further motion was not permitted because the Havner petitioners had no need to complain of the modification. In support of its position, E-Z Mart references the cover letter from the clerk of the court of appeals stating that the opinion on rehearing contained only "minor nonsubstantive changes" and the fact that the Havners' further motion raised points identical to those in its previously overruled motion for rehearing. See Great Atlantic Life Ins. Co. v. Harris, 723 S.W.2d 329 (Tex.App.--Austin 1987, writ dism'd) (dismissal by this court for want of jurisdiction after similar argument made).

Any risk of delay from parties filing further motions for rehearing is outweighed by the uncertainty injected into the appellate process by this court's review on a case-by-case basis of the permissibility of a further filing. To put the matter at rest once again, we hold that a party may file a further motion for rehearing as a matter of right if the court of appeals alters in any way its opinion or judgment in conjunction with the overruling of a prior motion for rehearing. E-Z Mart's motion to dismiss for want of jurisdiction is overruled.

II. Causation

We then turn to the merits of this appeal. In deciding a "no evidence" point, this court must consider only the evidence and inferences tending to support the jury's finding, viewed most favorably in support of the finding, and disregard all contrary evidence and inferences. State v. $11,014.00, 820 S.W.2d 783 (Tex.1991) (per curiam); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The court of appeals held that, as a matter of law, E-Z Mart's failure to take adequate security precautions was not a cause in fact of Havner's death. Cause in fact means that an act or omission was a substantial factor in bringing about the injury and without which no harm would have occurred. Missouri Pac. Ry. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977). The act or omission need not be the sole cause. Id. at 103-04. Nor "need [causation] be supported by direct evidence, as circumstantial evidence and inferences therefrom are a sufficient basis for a finding of causation." City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987); accord State v. $11,014.00, 820 S.W.2d at 784. Since E-Z Mart concedes here both negligence and foreseeability, the only issue for our consideration is causation--whether there is any evidence from which reasonable minds could draw an inference that the failure to provide a safe place to work was a cause in fact of Havner's death. See City of Gladewater, 727 S.W.2d at 518. Whether other possible inferences may be drawn from the evidence is not the relevant inquiry. See McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 904 (Tex.1980).

At trial, the Havners offered extensive testimony concerning the need for, availability of, and the failure of E-Z Mart to retain or install various security devices. The prior owner of the Sulphur Springs store, Shop-a-Minute, had installed two security mechanisms: (1) a "panic button" alarm, set under the counter just below the cash register, and (2) a necklace alarm, which could be worn around the neck and under the employee's company smock. Designed to be activated unobtrusively, these devices could silently transmit a signal to an alarm unit in the back of the store which would, in turn, relay the call for help to the police station. Upon its acquisition, E-Z Mart disconnected this system, which could have been maintained for about $8.00 a month.

At least two more reasonably priced silent alarm mechanisms were commercially available, including an alarm "clip," triggered by removal of money placed within it from the cash register and a foot-activated "toebar" alarm, located beneath the cash register. Alarm, security and law enforcement experts testifying at trial stressed the importance of these types of systems both in deterring robbery and in avoiding employee injury.

Such silent alarms had been activated unobtrusively when necessary on other occasions. In five of seven other convenience store robberies identified by Detective Sergeant Robert Stidham of the Sulphur Springs police department, alarms had been activated without injury to the clerk. According to assistant manager Katena McCord the alarms at this particular location had been triggered accidentally prior to their removal by E-Z Mart. In each instance, the police responded promptly to the call. With around-the-clock police monitoring of alarm systems, Detective Sergeant Stidham indicated that police response time in the early morning hours would be about one minute. Sulphur Springs Police Chief Donnie Lewis confirmed the efficiency of the local force, estimating response time at between one and one and a half minutes.

Besides the lack of an alarm system, other omissions and actions of E-Z Mart were criticized by expert witnesses as lessening security, and heightening the risk of employee injury. Dr. Norman...