Leitch v. Hornsby

• Decision Date: 28 September 1994
• Docket Number: No. 04-93-00335-CV,04-93-00335-CV
• Citation: 885 S.W.2d 243
• Parties: Russell LEITCH, Hal Crews, and ProCom Marketing Services, Inc., Appellants, v. Grady HORNSBY, Appellee.
• Court: Texas Court of Appeals

Page 243

885 S.W.2d 243

Russell LEITCH, Hal Crews, and ProCom Marketing Services Inc., Appellants, v. Grady HORNSBY, Appellee.

No. 04-93-00335-CV.

Court of Appeals of Texas San Antonio.

Sept. 28, 1994.

Charles M. Jefferson, Smith, Barshop, Stoffer & Millsap, San Antonio, for appellants.

Kathleen A. Hurren, Clark, Thomas, Winters & Newton, Charles A. Nicholson, Scott Roberts, Raul A. Rios, Law Offices of Pat Maloney, P.C., San Antonio, for appellee.

Before BUTTS, PEEPLES and HARDBERGER, JJ.

HARDBERGER, Justice.

This is a non-subscriber worker's compensation case in which Grady Hornsby injured his back unloading a reel of cable wire weighing approximately 65 pounds from his truck. The jury found the corporate employer and two individuals negligent and the trial court entered judgment for Hornsby. Appellants raise 14 legal and factual sufficiency points of error. For the reasons stated below, we affirm the trial court judgment.

Background

Hornsby injured his back while working as a technical manager for a television cable installation company. His employer did not provide him a weight-lifting belt, a dolly, or any other type of equipment to assist him in lifting a reel of cable wire out of his pickup. Hornsby did not ask for any help to unload the cable reel. Hornsby severely injured his back and has since undergone two back operations. He has not worked since the date of the accident. No worker's compensation coverage existed for the injury. Hornsby sued several entities and individuals on several grounds, including that they were his "employers" and through their negligence had caused his injury. The jury agreed. The trial court entered judgment based on a jury's finding of negligence in the amount of $594,000, plus pre-judgment interest of $103,795.40. The employer corporation, and Crews and Leitch in their individual capacities, were found jointly and severally liable and appeal this judgment.

Legal Insufficiency

Appellants raise seven "no evidence" points of error asserting a complete lack of evidence on each issue. See Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.App.-Amarillo 1988, writ denied). In reviewing "no evidence" points, we consider only the evidence and inferences that tend to support the finding, and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). Thus, if the record contains more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

Factual Insufficiency

Likewise, appellants raise the same seven issues as "insufficient evidence" points of error. "Factual sufficiency points of error concede conflicting evidence on an issue, yet maintain that the evidence against the jury's finding is so great as to make the finding erroneous." Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d at 275. Before detailing the evidence, it is important to remember that this court is not jury number two. Whether this court, if it were the original factfinder, would have found for one side or the other is immaterial. A jury in this state has great power. Jurors are "the sole judges of the credibility of the witnesses and the weight to be given to their testimony." TEX.R.CIV.P. 226a, approved instruction III. Their decision is not to be tampered with lightly, whether it favors the plaintiff or the defendant. The jury has, and should have, the final word on facts.

The supreme court has stated the standard by which we review a factual sufficiency point: we assess all the evidence and reverse for a new trial only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). "[I]n considering great weight points complaining of a jury's failure to find a fact, courts of appeals should be mindful that a jury was not convinced by a preponderance of evidence." Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). Reversal is warranted only if a detailing of the evidence shows that the great weight of the evidence supports a different answer. Id.

This court may not, and will not, substitute its judgment for that of the jury if the challenged finding is supported by some evidence of probative value and is not against the great weight and preponderance of the evidence. See Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex.Civ.App.-Amarillo 1981, writ ref'd n.r.e.).

On those occasions when an appellate court reverses a case for factual insufficiency, Pool v. Ford Motor Company requires that we "detail the evidence relevant to the issue in consideration, ... clearly state why the jury's finding is factually insufficient or ... against the great weight and preponderance of the evidence, [and] state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). Although Pool does not extend this level of analysis to affirmances on these grounds, we will mention evidence we consider sufficient to support the jury's verdict.

Simple Tool Rule

In points one through four, appellants claim that the jury's finding of negligence is legally and factually insufficient because (a) they were not responsible for furnishing Hornsby, an experienced employee, with simple tools, and (b) it is not the custom in the industry to furnish cable installers with lift belts. The "simple tool rule" relieves an employer of the duty to inspect a tool if that tool is committed to the exclusive control and care of the employee, and is of such a character that the employee who handles it should be fully acquainted with its condition. City of Houston v. Howard, 786 S.W.2d 391, 395 (Tex.App.-Houston [14th Dist.] 1990, writ denied) (citing Gulf, C. & S.F.R. Co. v. Larkin, 98 Tex. 225, 82 S.W. 1026, 1028 (1904)).

We agree with the simple tool rule, but it is not applicable in this case. It is a rule of inspection, not a rule on whether the employer has a duty to furnish tools such as lift belts or dollies to the employee as is the case here. We agree with appellee that the case of Harrison v. Oliver, 545 S.W.2d 229 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ dism'd), is more on point. That case cites the rule in Texas that an employer has a "nondelegable and continuous" duty to an employee to provide adequate help in performance of his work assignment. The employer has a similar duty to provide the employee with safe instrumentalities and tools, and to provide a safe place to work. Id. at 230 (citing Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977 (1947)); Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 135-36, 70 S.W.2d 397, 401 (1934); Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 926 (Tex.App.-Houston [1st Dist.] 1988, no writ).

Nor can we agree that "industry standard" controls this case. Industry standards are evidentiary, but not dispositive. Milner v. Huntsville Memorial Hospital, 398 S.W.2d 647, 652 (Tex.Civ.App.-Houston 1966, no writ); Brown v. Lundell, 334 S.W.2d 616, 619 (Tex.Civ.App.-Amarillo 1960), aff'd, 162 Tex. 84, 344 S.W.2d 863 (1961); Cameron Compress Co. v. Whitington, 280 S.W. 527, 529 (Comm'n App.1926, jmt. adopted). Some industry customs may be the result of careful thought and discussion while others arise from the kind of inadvertence, carelessness, indifference, cost-cutting and lack of safety measures that may be associated with negligence. An entire industry, by adopting careless methods to save time, effort or money, cannot by its careless conduct set its own uncontrolled standard for all members. Indeed, were the only test for negligence what an industry had done before, no industry would have any incentive to make progress in the direction of safety.

There was evidence Hornsby had repeatedly requested Leitch to provide the installation crew with lifting belts and dollies and was turned down. While this testimony was contradicted by the defendant, the jury was entitled to believe it. It is the jury's job to resolve conflicting testimony. They did so. They concluded that the employer was negligent for failing to furnish the equipment. There is some evidence to support that finding. Points one through four are overruled.

Safe Alternative

In points five and six, appellants argue that they could not be found negligent because Hornsby had a safe alternate method of lifting the cable reel--he could have asked another employee to help him lift it from his truck. The accident occurred in the motel parking lot where the cable crew stayed while working on the cable installation job. Another employee, Whidden, was inside the motel room with the door open. It is the appellants' position that Hornsby should have gotten Whidden to help him unload the cable reels. Whidden, however, was not a cable installer. He was sales manager for the job. He was in his motel room doing his paper work when he heard Hornsby's cry of pain. An employer has a non-delegable duty to provide rules and regulations for the safety of its employees and to warn them, under certain conditions, of the hazards of their employment. Ghazali v. Southland Corp., 669 S.W.2d 770, 774 (Tex.App.-San Antonio 1984, no writ). Whidden testified that neither Leitch nor Crews ever held safety meetings with their employees regarding proper lifting techniques. There is no evidence that Whidden was instructed, as a part of his duties, to assist cable installers in lifting heavy objects. Or that either Hornsby or the employer envisioned Whidden as an employee with...