Houston Lighting and Power Co. v. Sue

• Decision Date: 04 November 1982
• Docket Number: No. 2365,2365
• Citation: 644 S.W.2d 835
• Parties: HOUSTON LIGHTING AND POWER COMPANY, Appellant, v. Charles SUE, Appellee. cv.
• Court: Texas Court of Appeals

Page 835

644 S.W.2d 835

HOUSTON LIGHTING AND POWER COMPANY, Appellant, v. Charles SUE, Appellee.

No. 2365cv.

Court of Appeals of Texas Corpus Christi.

Nov. 4, 1982.

Rehearing Denied Nov. 29, 1982.

David M. Lacey, Stephen G. Tipps, Baker & Botts, Houston, for appellant.

Kenneth Strahan, Liberty, for appellee.

Before NYE, C.J., and YOUNG and GONZALEZ, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a suit involving a trespass. Appellant-defendant is Houston Lighting & Power Company (HL & P), and plaintiff-appellee is Charles Sue. The case was tried to a jury on a claim of trespass with counts of negligence and gross negligence, based upon HL & P's conduct in not securing permission of the property owner or from the lessee Mr. Sue to enter onto the land.

The case was submitted to the jury which found: liability on the part of HL & P; actual damages associated with Mr. Sue's cattle business, including lost cows, costs of rounding up cows and other incidental costs in the amount of $25,346.85, and exemplary damages in the amount of $125,000.00 based on a finding to the effect that HL & P acted maliciously or in such a disregard of Mr. Sue's rights as to be the equivalent of malice. Judgment was entered on the verdict. On appeal, HL & P is complaining of certain evidentiary matters and additionally seeks a remittitur of the exemplary damages.

In 1971, Ebasco Services (one of the defendants, but not a party to this appeal) was hired as a contractor by HL & P to construct a cooling pond to be used in connection with an expansion of HL & P's Cedar Bayou power plant. Prior to that time, HL & P had acquired fee ownership of the land to be inundated by the pond. However, during the course of construction, it became necessary for HL & P to acquire additional land adjacent to that which it had previously purchased. Included in this adjoining land was a 12-acre portion of a 377-acre tract leased to Mr. Sue. This particular tract of land, specifically, the 12-acre tract, is the property on which the trespass occurred. Record title to this property was in Stokes Adair, Trustee. Although there was no lease of record, it was undisputed that appellee Mr. Sue was leasing this property from Stokes Adair for farming and grazing. The main dispute throughout the trial and here on appeal is whether or not HL & P had permission to enter onto this 377-acre tract of land.

HL & P contends that, in trying to acquire this land, Bill Thornton, the head of HL & P's Right-of-Way Department, contacted the office of Stokes Adair. An initial meeting was set up between Thornton (representing HL & P), Jim Schindler, Herbert Warren (one of Schindler's employees), and Robert Baumgarten, the general manager of Stokes Adair Company. At this meeting, HL & P's interest in purchasing 12 acres of the 377-acre tract was discussed; but the negotiations stalled when Schindler and Baumgarten took the position that HL & P should purchase the entire 377-acre tract instead of only 12 acres. Thornton testified that he was specifically advised by Schindler that if he was unavailable in the future, Thornton should deal directly with Warren (Schindler's employee).

Prior to renewed negotiations concerning the purchase of the tract of land, Ebasco (the general contractor) approached HL & P, requesting permission to construct a road across the 12-acre tract. Thornton then attempted to contact Schindler regarding the request to construct the road; however, he was not able to get in touch with him. Thornton then called Warren concerning the request. Warren initially told Thornton that he would have to get back to him after he consulted with Schindler. Warren later advised Thornton that a road could be built across the tract but that gates would have to be put on each end of the land since it was leased for grazing. Thornton did not ask, and Warren did not volunteer the name of the lessee, Mr. Sue. HL & P argues that the road was constructed after this permission was given, and therefore, no trespass occurred.

Appellee Sue contends, and the record bears him out, that he never did know that HL & P was using the land until July 7, 1972, when he first found out that some of his cattle were out of his pasture.

It is undisputed throughout the record that there was no permission given by Stokes Adair, the record owner of the land, or appellee Sue, the lessee of the land, for either HL & P or Ebasco, the contractor, to cross any part of the 377-acre tract of land.

HL & P, in its first point of error, contends that the trial court erred in excluding the testimony of Robert Baumgarten, which concerned Jim Schindler's partnership interest in the land in question, because it was admissible and crucial to HL & P's defense. HL & P argues that the focus of its defense in this trespass case was that it had obtained permission for Ebasco to go across the property and thus there was no trespass. HL & P claims that the testimony in support of this defense was that the permission came from a man acting on behalf of Schindler. Therefore, the exclusion of testimony concerning ownership of the land in question allowed appellee Sue to mislead the jury concerning Schindler's position and authority.

Appellant perfected a bill of exception on the excluded testimony. It was as follows:

"Q: What was the relationship between Stokes Adair and Jim Schindler?

A: Jim has an interest in the land. He is a partner with us in ownership of the land."

In reviewing the record, particularly Robert Baumgarten's deposition testimony, we find similar testimony was elicited from Mr. Baumgarten (the general manager for Stokes Adair). For instance, the following questions were propounded to Mr. Baumgarten:

"Q: Were you the individual for Stokes Adair that entered into this final agreement with Houston Lighting & Power in December of 1972, whenever it was?

A: Yes, Jim Schindler and I.

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Q: Would Jim Schindler have had the power or the authority to give Houston Lighting & Power permission to go upon that property?

A: Yes. Yes, he could have. I'm quite certain that he did not, because I would have known of it, I think, if he had."

We hold that if there was any error in excluding the testimony of Mr. Baumgarten as to Jim Schindler's relationship to Stokes Adair, it was harmless because such testimony was merely cumulative of previously offered testimony. Rule 434, T.R.C.P. Any error in not admitting or excluding evidence becomes immaterial where such error does not affect the verdict and judgment rendered. To obtain reversal of the judgment for exclusion of evidence, appellants had the burden to show: first, that the rejection of the proffered testimony was error; and second, that it was reasonably calculated to and probably did cause the rendition of an improper judgment. Franco v. Graham, 470 S.W.2d 429 (Tex.Civ.App.--Corpus Christi 1971, aff'd as reformed on other grounds, 488 S.W.2d 390, 1972). Schutz v. Southern Union Gas Company 617 S.W.2d 299 (Tex.Civ.App.--Tyler 1981, no writ); Crisp v. Parker, 516 S.W.2d 10 (Tex.Civ.App.--Austin 1974, no writ). This, the appellant has not done. Accordingly, appellant's first point of error is overruled.

HL & P contends in its second point of error that the trial court erred in submitting Special Issue 18 (the exemplary damage issue) and in entering a judgment for exemplary damages because there is no evidence or insufficient evidence that the action of HL & P in telling Ebasco that it had secured permission for Ebasco to enter on the 377-acre tract was willful, fraudulent and malicious. In connection with this point, appellant also contends that the trial court erred in not granting a new trial or ordering a remittitur because the $125,000.00 award as exemplary damages is excessive.

It is well settled that a corporation, such as the appellant in this case, may be liable for exemplary damages. This liability can only arise by imputation of malice by some individual authorized to act for the corporation and who did, in fact, act as its agent. P.C. Sorenson Co. v. Bell, 326 S.W.2d 271 (Tex.Civ.App.--Dallas 1959, writ ref'd n.r.e.). See also: Mayflower Investment Company v. Stephens, 345 S.W.2d 786 (Tex.Civ.App.--Dallas 1961, writ ref'd n.r.e.). An award of exemplary damages is not justified if the only ground for such damages is that the act itself is unlawful. Instead, the act complained of must partake of a wanton and malicious nature. Ware v. Paxton, 359 S.W.2d 897 (Tex.1962).

To authorize a finding of exemplary damages for trespass, the evidence must show some element of fraud, malice or oppression. The act which constitutes the cause of action (in this case, the loss and damage to appellee Sue's cattle) must be actuated by or accompanied with some evil intent, or must be the result of gross negligence or such disregard of anyone's rights as is deemed equivalent to such intent. Mayflower, supra at 793.

In reviewing appellant's no-evidence point on the issue of exemplary damages, we are guided by the rule that in determining whether there is any evidence, we must consider only the evidence and the inferences tending to support the jury's finding and disregard all inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Here, there is an absence of direct evidence of the vital fact to be proved (appellant's wilful and wanton conduct) but we find ample circumstantial evidence from other relevant facts and circumstances which were proved. St. Joe Paper Company v. McNair Trucklease, Inc., 593 S.W.2d 818 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex.L.Rev. 359 (1960).

In reviewing the evidence in this case under the above previously stated facts and guidelines, we find the following additional facts to be pertinent. The evidence as to how Mr. Sue's cattle got out is relevant. Mr. Coonrod, an HL & P employee at the time in question,...