Murray Corp. of Maryland v. Brooks

• Decision Date: 22 May 1980
• Docket Number: No. 1279,1279
• Citation: 600 S.W.2d 897
• Parties: 115 L.R.R.M. (BNA) 4786 MURRAY CORPORATION OF MARYLAND, Appellant, v. Huey J. BROOKS, Appellee.
• Court: Texas Court of Appeals

Page 897

600 S.W.2d 897

115 L.R.R.M. (BNA) 4786

MURRAY CORPORATION OF MARYLAND, Appellant, v. Huey J. BROOKS, Appellee.

No. 1279.

Court of Civil Appeals of Texas, Tyler.

May 22, 1980.

Rehearing Denied June 20, 1980.

John H. Minton, Potter, Guinn, Minton, Roberts & Ireland, Tyler, for appellant.

R. Ernest Swift, Swift, Swift & Lawrence, Palestine, for appellee.

SUMMERS, Chief Justice.

This is a suit involving Huey J. Brooks' alleged wrongful discharge from his employment with Murray Corporation of Maryland.

Huey J. Brooks (Brooks) filed suit against Murray Corporation of Maryland (Murray) claiming that Murray, in violation of Tex.Civ.Stat.Ann. art. 8307c, ¹ discharged Brooks because he instituted worker's compensation proceedings. Brooks prayed for damages against Murray for this wrongful discharge. Murray answered with a general denial together with a specific denial that Brooks' filing of a worker's compensation claim or initiating a worker's compensation proceeding had anything to do with his discharge. Murray further alleges that Brooks' discharge was based upon the following:

1. Murray had, during the time of the surgery to Brooks, and his recovery therefrom, sustained a severe reduction in its business, product orders and work force due to a severe downturn in the economy and the severe gasoline shortage of the time, rendering it unnecessary for defendant to have or need as many drivers as it previously had, and Brooks was discharged from the payroll as being the driver then employed having the least seniority.

2. Brooks had sustained a severe back injury, due in part to spondylolisthesis, a condition not due in any degree to his work for Murray, and had surgery thereon, in which his spine was fused in part. Due to such injury and surgery, Brooks could not perform the usual and regular duties of a truck driver without assistance in loading and unloading and driving, and without danger and further injury to himself.

3. Brooks at the time of his discharge had been on the payroll of defendant in leave of absence status for more than six months, and under the terms of the employee handbook of Murray under which plaintiff was hired and employed, his rights of seniority terminated, with defendant having the option to extend such period.

The case was tried before a jury. In response to special issues submitted, the jury found as follows:

1. Huey Brooks was discharged or discriminated against because he instituted proceedings under the Texas Worker's Compensation Act (Special Issue No. 1);

2. $24,460 would compensate Brooks for his loss of wages between March 5, 1975, and April 17, 1978; and $540 would compensate Brooks for loss of contribution for retirement and medical benefits between March 5, 1975, and April 17, 1978 (Special Issue No. 2).

Pursuant to the jury's verdict, the trial court entered judgment against Murray for $25,000. Murray filed a motion for judgment non obstante veredicto, or in the alternative, a motion to disregard findings on Special Issue No. 2 and for additional express findings. After the motions were overruled, Murray perfected this appeal.

We affirm.

Brooks was employed as a long haul truck driver by Murray at its plant in Palestine, Texas. In January, 1974, Brooks, while in the course of his employment, was involved in an unavoidable accident which involved his truck, another truck, and a car. In this accident Brooks sustained a severe hand injury, and as a result, could not work for approximately six months. Brooks filed a worker's compensation claim in connection with this hand injury. He also hired an attorney to represent him in connection with such claim. The claim was settled, and after a release from his attending doctor, Brooks returned to work.

Approximately eight weeks later on August 5, 1974, Brooks was involved in another work-related accident. While unloading his own truck at Murray's warehouse in St. Louis, Missouri, Brooks sustained a severe injury to his back. He was placed in the care of Dr. Leland G. Wilcox, an orthopedic surgeon, who performed a spinal fusion operation on Brooks in an attempt to alleviate some of the back pain Brooks was experiencing. Brooks filed a worker's compensation claim in connection with his back injury and hired an attorney to represent him in such claim.

Following this surgery, Brooks was granted a six-month leave of absence by Murray. At the end of this six-month period three managers of the Palestine plant met (managers' meeting) and decided that Brooks' leave of absence should not be extended another six months and that he should be discharged. Brooks' name was removed from the employee roll on March 5, 1975. Brooks was never called back to work by Murray, and he was never given a reason for his discharge.

Murray predicates this appeal upon three points of error. Its first point of error contends that the trial court erred in overruling Murray's motions for instructed verdict, its objections to the submission of Special Issue No. 1, and its motion for judgment non obstante veredicto, because there was no evidence of probative force in the record that Brooks was discharged or discriminated against as a result of his initiation of worker's compensation proceedings. We cannot agree with Murray's contentions and therefore overrule the first point of error.

Special Issue No. 1 inquired of the jury whether Murray had discharged or in any other way discriminated against Brooks because he had initiated worker's compensation proceedings.

Rule 301, T.R.C.P., reads in part: "Upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and . . . the court may, upon like motion and notice, disregard any special issue jury finding that has no support in the evidence." It follows that a jury finding may not be disregarded if there is any evidence of probative force, which with proper inferences arising therefrom will reasonably support it. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276 (1958); Frost National Bank v. Nicholas and Barrera, 534 S.W.2d 927, 932 (Tex.Civ.App. Tyler 1976, writ ref'd n. r. e.); Schrader v. Artco Bell Corp., 579 S.W.2d 534, 537 (Tex.Civ.App. Tyler 1979, writ ref'd n. r. e.).

In order to sustain a motion for judgment non obstante veredicto, a trial court must determine that there is no evidence having probative force upon which the jury could have made the findings relied on. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962); Dodd v. Texas Farm Products Co., 576 S.W.2d 812 (Tex.1979). In passing upon these points we must consider the evidence in a light most favorable to the jury findings, considering only the evidence and inferences which support the verdict and rejecting the evidence and inferences which are contrary thereto. Burt v. Lochausen, supra; Grundmeyer v. McFadin, 537 S.W.2d 764, 768 (Tex.Civ.App. Tyler 1976, writ ref'd n. r. e.); Schrader v. Artco Bell Corp., supra; Rule 301, supra.

At the time Brooks was discharged, Mike Sunday (Sunday) was the general manager of Murray's plant located in Palestine, Texas. His oral deposition was taken on May 27, 1976, by Carl T. Black. During the course of this deposition, Sunday was asked whether Brooks' worker's compensation claims were considered at the managers' meeting. During trial Mr. Black testified that Sunday gave the following answer in his deposition:

Q. (by Brooks' attorney) All right. Back on or about May the 27th, 1976, did you have occasion to transcribe some oral depositions taken in this case, the case styled Huey J. Brooks versus Murray Corporation of Maryland?

A. On May the 27th is the day we took the depositions, Mr. Swift.

Q. And when did you transcribe them and certify to them?

A. I frankly don't remember. It would be on my certificate.

Q. By looking at your certificate, can you tell us?

A. I signed this on the 18th day of June, 1976.

Q. I will ask you this question from the typed deposition, if I may, and you read me the answer that you have on your shorthand notes.

A. All right, sir.

Q. The question is to Mike Sunday. Question: "How much did you all figure it had raised your Workmen's Comp. rates by virtue of these claims that Huey had filed?"

A. Answer: "Well, to tell you the truth, no consideration was given to the actual amount, if any, as a result of discharging Huey Brooks, It was a consideration." (Emphasis ours.)

The record further reveals that prior to trial of this case, Brooks filed a request for admissions and interrogatories in which Murray was asked in Interrogatory No. 3 to state the facts that it claimed justified the discharge of Brooks. In this regard, Murray filed its first reply on May 13, 1976. Prior to this date Brooks had not been given any reason for his discharge. Murray's first answers to Interrogatory No. 3 were as follows:

A. The Plaintiff, Huey J. Brooks, has been involved in several work related accidents. It was the conclusion of the Defendant that he was more than usually accident prone. That continued employment would result in further injury to him and further responsibility and liability to Murray Corporation.

B. Plaintiff, Huey J. Brooks, is afflicted with a congenital back condition aggravated by industrial injuries to the extent that he is more than ordinarily susceptible to injuries in the course of his employment creating a danger to the health and welfare of the Plaintiff, Huey J. Brooks, and exposing Murray Corporation to unreasonable risks of liability with respect to such anticipated injuries.

C. Plaintiff, Huey J. Brooks, by virtue of a congenital back condition and the industrial injuries thereto rendered him unable to do the usual and customary job of a truck driver for Murray Corporation due to limitations in his ability to lift, bend, stoop and otherwise perform the duties of a truck driver.

D. Plaintiff, Huey J....