Murphy v. Waldrip

• Decision Date: 19 June 1985
• Docket Number: No. 2-84-211-CV,2-84-211-CV
• Citation: 692 S.W.2d 584
• Parties: Vincent MURPHY, Appellant, v. Larry Wayne WALDRIP, Appellee.
• Court: Texas Court of Appeals

Page 584

692 S.W.2d 584

Vincent MURPHY, Appellant, v. Larry Wayne WALDRIP, Appellee.

No. 2-84-211-CV.

Court of Appeals of Texas Fort Worth.

June 19, 1985.

Banner, McIntosh & Dobbs and Jack Banner and Dottie Murphy, Wichita Falls, for appellant.

Fillmore & Associates and H. Dustin Fillmore and K. Marvin Adams, Fort Worth, for appellee.

Before JORDAN, ASHWORTH and HOPKINS, JJ.

OPINION

HOPKINS, Justice.

This appeal from a judgment awarding appellee, Larry Wayne Waldrip, substantial damages, both actual and exemplary, for two alleged assaults by appellant, Vincent Murphy, presents questions on evidentiary sufficiency, jury instructions, counsel jury argument and conduct, excessiveness of awards, injection into the trial of appellant's purported wealth and extraneous activities, and an alternative request for remittitur.

Our review of the twenty-one points of error reveals no reversible error and, therefore, we affirm.

Appellant and his brother were owners of the surface only of land on which appellee planned to drill an oil and gas well. Appellant had expressed concern about the location of a roadway across the property to the well site and was in the office of his attorney inquiring as to appellee's right to explore for minerals at the time he received a telephone call telling him appellee was at the well site. Upon receiving an opinion from his attorney that appellee was committing a trespass, appellant immediately went to the well location, where the first of the alleged assaults occurred. The second assault occurred while appellee waited for appellant to unlock the gate so that appellee could leave the premises pursuant to the demand of appellant. Appellee received no physical wounds and was never medically treated for physical or emotional injuries. Both assaults were committed by threats upon the life of appellee by appellant with the use of loaded firearms. The jury awarded $125,000 actual damages for mental anguish suffered by appellee, $50,000 for the first assault and $75,000 for the second assault. The jury also awarded exemplary or punitive damages of $200,000 for the first assault and $300,000 for the second assault.

In points one and nineteen, appellant contends there is no evidence or, alternatively, insufficient evidence to support the amount of the jury award of either actual or punitive damages. In points four, five, six and twenty it is asserted the excessive awards resulted from appellee's injection into the trial the matter of appellant's purported wealth. In points twelve, thirteen, fourteen, fifteen and sixteen, appellant states that the argument and sidebar remarks of appellee coupled with the necessity of appellant making fifteen motions for mistrial caused the jury to return an improper verdict based on bias, prejudice or other improper motive. We find appellant's contentions to be without merit. Since all of these matters relate to the amount of the award, we will consider them together.

The amount of damages suffered is a fact issue to be determined by the jury and should not be disturbed by this court if supported by sufficient evidence, when viewed in the light most favorable to the jury award. See Allen v. Roark, 625 S.W.2d 411, 417 (Tex.App.--Fort Worth 1981), rev'd on other grounds, 633 S.W.2d 804 (Tex.1982); Bill Hendrix Auto Parts v. Blackburn, 433 S.W.2d 237, 240-41 (Tex.Civ.App.--Houston [14th Dist.] 1968, no writ).

In determining a "no evidence" point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. See International Armament Corporation v. King, 686 S.W.2d 595 (1985); Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102, 103 (Tex.1979). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951).

A "no evidence" point of error must and may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; (4) the evidence establishes conclusively the opposite of a vital fact. Royal Indemnity Co. v. Little Joe's Catfish Inn, Inc., 636 S.W.2d 530, 531 (Tex.App.--San Antonio 1982, no writ); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 361 (1960).

Where the challenge to a jury finding is framed as an "insufficient evidence" point, we are to consider all the evidence in the case, both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If the court so determines, the finding should be set aside and a new trial ordered. Id.

In considering an "insufficient evidence" point, we must remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony. See Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App.--Amarillo 1977, writ ref'd n.r.e.). This court may 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.).

It is clear from the record that the jury had before it evidence of the outrageous character of the assault by appellant. Upon arriving at the site, appellant entered and locked the gate and drove to the well location. Appellant got out of his pickup with a .22 rifle, chambered a shell and pointed the rifle at appellee's head. Appellant cursed, threatened to kill appellee and ordered him off the premises. When appellee got into his car and started to leave, appellant rammed appellee's car and proceeded to push appellee from behind with appellant's pickup. When they reached the locked gate, appellant stopped his pickup behind appellee's car, got out with a loaded shotgun which he cocked and began poking appellee in the upper body with the muzzle of the gun and again threatened the life of appellee. There was testimony appellant switched weapons because he found the .22 had jammed and couldn't be fired. Appellee testified he was "absolutely terrified" that his life was going to end at any time and that he thought he was a "dead man". Other witnesses to the events said they were afraid appellant was going to kill appellee, one of whom stated he saw appellee later in town and that appellee was "shaking, still real white, still couldn't talk." Appellee testified that at the time of trial he was still worried about "running across that man [appellant] again."

The jury had the opportunity to observe the appearance and demeanor of the witnesses as they described the events that occurred. The record does not reveal that the minds of the jurors were so controlled by passion, prejudice or bias as to render them unwilling to consider the merits of the case. The evidence being sufficient to support the awards of both actual and punitive or exemplary damages, points of error one and nineteen are overruled.

The amount of such damages must not, however, be based on improper evidence. It is reversible error to inject into the trial a party's wealth. Young v. Kuhn, 71 Tex. 645, 9 S.W. 860 (1888); First Nat. Bank of Marshall v. Beavers, 619 S.W.2d 288 (Tex.Civ.App.--Texarkana 1981, writ ref'd n.r.e.). The following testimony of which appellant complains was given by the witness Rice while being questioned by appellee's attorney relative to a prior altercation between the witness and appellant over alleged damage to a gate and bridge:

Finally he [appellant] blew up--I kind of blew up myself, and I told him--well first he told me, he said, 'You stay off this lease. Don't come back on it,' he said, 'until you put up a new gate and have that bridge repaired.' I said, 'I did nothing to your bridge; I did nothing to your gate; and I had the gate repaired.' And then he kept cussing me and calling me a liar, and he said, 'You stay out of here,' and he said, 'I have enough money to make sure that you don't come out here,' and he said, 'I am fixing to sue a bunch of the people out here,' ...

In examination of the witness Shelnutt by appellee concerning previous happenings between the witness and appellant, the following questions and answers were given of which appellant complains:

Q. What happened on that occasion?

A. He stopped the crew. We were working on a well. He drove up and stopped the crew from working. I drove down to see what the problem was, and I told him, I said, 'There is four of you all, and there is me.' He says 'Don't work any more,' ... He said, 'Well, I am not going to say you can't, but come here.' I went over to the car.

Q. Whose car?

A. His car. He got in, he uncovered a pistol, and he says, 'I am going to sue every one of you, or I will kill you,' and he said, 'I have got fifty-nine million dollars that I will make more money out of this than you all do.' I said, 'Vincent, if that is all you have got, why don't we just buy you out and get you out of your misery?'

We believe it is important to note that the issue of appellant's wealth was not made the subject of inquiry by appellee, but was given in both instances by the witness in response to questions about previous altercations between the witnesses and appellant. Additionally, we find no objection made by appellant to the testimony of the...