Monsanto Co. v. Johnson

• Citation: 675 S.W.2d 305
• Decision Date: 19 July 1984
• Docket Number: No. 01-83-0765-CV,01-83-0765-CV
• Parties: MONSANTO COMPANY, Appellant, v. Annie Belle JOHNSON, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 305

675 S.W.2d 305

MONSANTO COMPANY, Appellant, v. Annie Belle JOHNSON, Appellee.

No. 01-83-0765-CV.

Court of Appeals of Texas Houston (1st Dist.).

July 19, 1984.

Otto D. Hewitt, III, McLeod, Alexander, Powell & Apffel, Ervin A. Apffel, McLeod, Alexander, Powell & Apffel, Galveston, for appellant.

Alton Todd, Brown, Todd, Hagood & Davenport, Alvin, Mark D. Wilson, Atkins & Wilson, Kenneth W. Sparks, Edward J. Hennessy & Associates, Houston, for appellee.

Before EVANS, C.J., and BULLOCK and COHEN, JJ.

OPINION

EVANS, Chief Justice.

The appellee, Annie Belle Johnson, brought this action against Monsanto Company and Jesse L. Hutto, Jr. to recover for the wrongful death of her husband, B.B. Johnson. At the time of his death Mr. Johnson was working as an insulator for Owens-Corning Fiberglass Corporation at Monsanto's Texas City plant. Johnson had just walked through Monsanto's entrance gate when a car, driven by Hutto, crashed through the gate and struck him, causing his fatal injuries.

In her petition, Mrs. Johnson alleged, among other acts and omissions, that Monsanto was negligent in locating the entrance gate at the end of a public thoroughfare, and she claimed damages for pain, suffering and mental anguish, loss of consortium, support, and for medical and funeral expenses. She also asked for punitive damages and for prejudgment and postjudgment interest.

The case was tried to a jury which, in response to special issues, found no negligence on the part of the driver, Hutto, but negligence on the part of Monsanto in failing to offset its entrance gate from the end of the public thoroughfare. In response to the damage issues the jury awarded Mrs. Johnson $210,000 for her pecuniary loss; $500,000 for loss of consortium; $463.55 for medical and health care; and $2,444.45 for funeral and burial expenses. It also found that Monsanto was grossly negligent and awarded Mrs. Johnson the sum of $250,000 as exemplary damages.

The trial court set aside the jury's gross negligence award of $250,000, finding no evidence to support such award. After hearing Monsanto's motion for judgment non obstante veredicto, the court also ordered a remittitur of the prejudgment interest it had awarded as of the date of the verdict, and a remittitur of the medical and funeral expenses, reducing the total damage recovery from $712,908 to $710,000.

On this appeal, Monsanto challenges the sufficiency of the evidence to support the jury's finding of negligence, claims that the jury's awards for pecuniary loss and for loss of consortium were excessive, and alleges that the trial court erred in excluding certain expert testimony. In cross-points of error, Mrs. Johnson contends that the trial court erred in holding there was no evidence of gross negligence, and in requiring her remittitur of the expenses and prejudgment interest.

Monsanto contends in its first two points of error that the trial court erred in submitting the negligence issue and in rendering judgment on that issue, arguing that there is no evidence or, alternatively, insufficient evidence to support the jury's answer.

Because the trial court must render judgment on an issue unless there is no evidence to support it, these two points of error are both "no evidence" questions. Chemical Cleaning, Inc. v. Chemical Cleaning & Equip. Serv., Inc., 462 S.W.2d 276 (Tex.1970). In reviewing these points, we consider only that evidence, and reasonable inferences therefrom, which viewed in its most favorable light, supports the jury's findings, rejecting all evidence and inferences to the contrary. Schaefer v. Texas Employers' Ins. Ass'n, 612 S.W.2d 199 (Tex.1980).

It is undisputed that the decedent, Mr. Johnson, occupied the status of an invitee on Monsanto's premises, and under the circumstances here present, Monsanto had the duty to take such reasonable precautions as would protect Mr. Johnson from any dangerous condition on its property of which it had either actual or constructive knowledge. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983); see also Shell Oil Co. v. Waxler, 652 S.W.2d 454 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.).

The entrance gate in question was located at the end of a regularly traveled public street. All employees of contractors working on projects at the Monsanto plant were required to enter and exit at this gate, where their hours were recorded and security checks were made. The gate was kept open from 7:00 A.M. until 5:00 P.M. for both pedestrian and vehicular traffic. There were guards posted at the gate but their duties were primarily related to plant security. A stop sign was posted at the gate and also a sign indicating the speed limit inside the plant to be 15 m.p.h. On the day in question, Mr. Hutto was approaching the gate in his car when he apparently lost conscious control, allowing the car to proceed past the stop sign, through the gate, and into the plant property at about 40 m.p.h. The car continued unimpeded until it struck Mr. Johnson at a point approximately 200 feet inside the gate.

Monsanto's director of security testified that the gate had been installed 10 years prior to the accident at its current location, i.e., in a direct line with an east-west thoroughfare which ran into the plant. Pedestrian traffic through the gate at the time of the accident used the same road as vehicles, and there was no sidewalk, fence, or other separation of pedestrians from vehicular traffic.

A traffic engineer, Mr. Dan Lynch, was called as an expert witness by Mrs. Johnson. He testified that he had been employed by the City of Houston as a traffic engineer for seven and a half years, and also had worked for a private firm performing traffic transportation engineering. He had performed consulting work for the entrance to the Port Arthur Texaco plant and had also done work for Monsanto. He stated his opinion, as an expert, that the accident could have been avoided by relocating the entrance to the plant at an offset location from the thoroughfare road. Thus, the jury was entitled to infer from this testimony that the location of the gate in relation to the public thoroughfare presented a dangerous condition to pedestrians using the gate to enter Monsanto's plant site and that such danger could have been alleviated by relocating the gate entrance at a location offset from the road.

In its brief, Monsanto argues that such an offset would have made little difference, pointing to testimony that a car might still break through a chain link fence even if the gate were offset. This argument does not take into account the real purpose of such an offset, i.e., to move pedestrians using the gate away from the direct line of oncoming traffic.

We find that the evidence furnished a reasonable basis for the jury's determination of the negligence issue and overrule Monsanto's first two points of error. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex.1983).

We next consider Mrs. Johnson's first cross-point of error in which she contends that the trial court erred in granting Monsanto's motion for judgment n.o.v., and in setting aside the jury's award of punitive damages based on its finding that Monsanto was guilty of gross negligence.

In response to this cross-point, Monsanto contends that in order for it to be found guilty of gross negligence, the evidence must establish "an entire want of care" on its part and that because there was evidence that it had exercised "some care," the trial court properly entered the judgment n.o.v. in its favor. In support of this contention Monsanto cites Missouri Pacific Ry. Co. v. Shuford, 72 Tex. 165, 10 S.W. 408 (1888).

In Burk Royalty Co. v. Walls, 616 S.W.2d 911, 917 (Tex.1981), the Texas Supreme Court endorsed the Shuford definition as the accepted formulation of gross negligence:

Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.

However, the Supreme Court, in Burk Royalty, expressly disapproved the use of the "some care" test in deciding legal sufficiency points of error. Id. at 922. Thus, in the case at bar, if there is any evidence in the record to support the jury's award, based upon the "entire want of care" standard, we are required to reinstate the award of punitive damages.

It is undisputed that Monsanto was not unfamiliar with the concept of an offset gate. There was evidence that Monsanto had specifically designed the placement of a gate at another of its plants so that direct vehicle access was not possible and approaching vehicles had to move laterally to enter the gate. There was also testimony from which the jury could reasonably have inferred that there had been at least one previous instance where a car had accidentally proceeded straight through the gate in question, and other instances where gates had been run into during off hours. Monsanto argues that such testimony was based on hearsay statements of others, and that there was no evidence showing that its supervisory personnel had knowledge of these "problems." However, we find there was competent evidence, albeit circumstantial in nature, to support a reasonable inference by the jury that Monsanto had actual or constructive notice of the dangers incident to maintaining a pedestrian entrance gate at the end of a public thoroughfare. This evidence, coupled with testimony indicating that Monsanto knew how to correct the dangerous condition and chose not to do so, was sufficient basis for the jury's conclusion that Monsanto was...