Pate v. Texline Feed Mills, Inc.
| Decision Date | 15 February 1985 |
| Docket Number | No. 07-83-0098-CV,07-83-0098-CV |
| Citation | 689 S.W.2d 238 |
| Parties | Tommy PATE, et ux., Appellants, v. TEXLINE FEED MILLS, INC., Appellee. |
| Court | Texas Court of Appeals |
Templeton & Garner, Robert E. Garner, John Smithee and Robert L. Templeton, Amarillo, for appellants.
Underwood, Wilson, Berry, Stein & Johnson, John Mozola and Kelly Utsinger, Amarillo, Richards & Ferguson, Floyd H. Richards, Dalhart, for appellee.
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
Tommy Pate and his wife, Jerry, appeal from a take-nothing judgment rendered by the trial court on the jury's verdict on their personal injury action against Texline Feed Mills, Inc. By seven points of error, the appellants claim the trial court committed reversible error by refusing to render judgment for them on an alleged oral verdict, rather than the jury's written verdict presented in open court; by accepting an ambiguous, unclear, or incomplete jury verdict; by misreading and making verbal comments on a portion of the court's charge; and, by refusing to permit them to present evidence of acceptable standards of care in the industry which were allegedly violated by Texline. Concluding that appellants' points of error and contentions made thereunder do not present cause for disturbing the judgment, we affirm.
As an independent welding contractor, Tommy Pate was engaged to perform certain welding work at a grain storage facility owned by Texline. At approximately 1:15 p.m. on 16 May 1979, Pate returned from lunch to begin work on a bin at the grain storage facility. At that time, Pate noticed that a piece of his equipment was missing from the immediate worksite. He went into the facility to locate the missing equipment. Shortly thereafter, a fire started in the facility. As a result of the fire, Pate received severe burns on the upper part of his body, including his chest, back, arms, hands, and face.
The record shows that the case was submitted to the jury on twenty-one special issues numbered 1, 1A, 2, 2A, 2B, 2C, 3, 3A, 4, 4A, 5, 5A, 6, 6A, 7, 7A, 8, 9, 10, 11, and 12. The jury answered all of the issues, except issues numbered 7A, 9 and 12. Those three issues were conditionally submitted and by its answers to the respective predicating issues, the jury was not required to answer those three issues. The jury's answer to each issue was recorded in writing by the foreman in the answer space provided in the court's charge.
By its written answers to the special issues, the jury determined: that Texline failed to render the premises in question reasonably safe for Tommy Pate; but, that such failure was not a proximate cause of the occurrence in question; that Texline failed to warn Pate of any danger on the premises; that the dangerous conditions on the premises were known by Texline; that the dangerous conditions on the premises should have been discovered by Texline; but, that none of the three preceeding matters were a proximate cause of the occurrence in question; that Texline failed to properly maintain the electrical motors, apparatuses, "and/or" wiring; and that such failure was not a proximate cause of the occurrence in question.
The jury further found that Texline failed to properly inspect the electrical motors, apparatuses "and/or" wiring; but, that such failure was not a proximate cause of the occurrence in question; that Texline failed to provide proper fire prevention equipment at the facility; but, that such failure was not a proximate cause of the occurrence in question; that the foregoing failures of Texline were a "heedless and reckless disregard of the rights of others"; but, that such action was not a proximate cause of the occurrence in question; and that Pate was not negligent on the occasion in question. To the various items of damages, the jury found a total sum of $609,000.
All of the jury's answers to the special issues were unanimous, except its answer to special issue number 1A. That special issue, and its predicating issue with the jury's answers thereto read:
SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that Texline Feed Mills, Inc. failed to render the premises in question reasonably safe for Tommy Pate?
Answer "Yes" or "No", as you may find.
ANSWER: Yes
If you have answered the above and foregoing Special Issue No. 1 "Yes", then answer the following Special Issue;
other [sic] do not answer the following Special Issue.
SPECIAL ISSUE NO. 1A
Do you find that such failure was a proximate cause of the occurrence in question?
Answer "Yes" or "No", as you may find.
Since the jury's verdict was not unanimous, the eleven jurors that answered "no" on special issue number 1A signed the verdict.
The written verdict signed by the assenting eleven jurors was returned in open court with all jurors present, reviewed and accepted by the court. However, the court, rather than the clerk, read the jury's written verdict. When reading the written verdict, he misstated the jury's answer to special issue number 1A (i.e., he stated the jury's answer as "yes," rather than one "yes" and eleven "no"). A few minutes after the court had discharged the jury and its members had separated and disbursed, the court realized that he had misread the written answer to special issue number 1A, and he informed Pate's attorney.
By their first point of error, the appellants claim the trial court erred by refusing to render judgment for them on the verdict as read by the judge in open court, rather than the written jury verdict signed by eleven jurors and returned in open court. We disagree.
The record shows:
* * *
* * *
(Thereupon the Court examined the verdict form.
THE COURT: There are eleven signatures. I'm going to read the number and the answer of the jury for the attorneys to fill in. Then I'm going to ask the eleven of you who joined in this, I need to get you to listen carefully so that you can tell me, by raising your hands, whether each answer that I've read is your verdict. If there's any of them that you need me to read the special issue questions to be sure, well, then, I'll do that. But try, the best you can, to follow it by number.
Special Issue Number One. Jury verdict, "yes".
Special Issue Number One-A. "Yes".
Special Issue Number Two. "Yes".
Special Issue Two-A. "Yes".
Special Issue Two-B. "Yes".
Special Issue Two-C. "No".
Special Issue Three. "Yes".
Special Issue Number Three-A. "No".
Special Issue Number Four. "Yes".
Special Issue Number Four-A. "No".
Special Issue Number Five. "Yes".
Special Issue Number Five-A. "No".
Special Issue Number Six. "Yes".
Special Issue Number Six-A. "No".
Special Issue Number Seven. "No".
And, under the instruction of the Court, then, Special Issue Number Seven-A was not answered.
Special Issue Number Eight. "No".
Special Issue Number Nine. There's no filling in. Was that conditioned, gentlemen?
Number Eleven, Special Issue Number Eleven. "$50,000.00"
Special Issue Number Twelve then was not answered under the instructions of the Court.
All right. Now, the jury has heard me read these answers. If you can tell from the answers if this is your verdict, please raise your hand. Raise your hand if it is your verdict.
All right. Thank you. The record will reflect that eleven jurors did raise their hand and eleven have answered--have signed the verdict. If you--I'll ask you to raise your hand again if you--if your signature is on the jury verdict; if you signed the jury verdict, will you raise your hand again, please?
All right. The eleven whose signatures are on the jury verdict have also certified that this is their verdict, so I will accept the verdict and order it filed. [Emphasis added.]
Even though the court misread the jury's answer to special issue number 1A, it is obvious from the record that the court accepted and ordered filed the written verdict. Nevertheless, appellants argue that when the court misread the jury's answer to special issue number 1A and the jurors assented to the answer as read by the court, the jury changed its verdict on that issue and that the trial court...
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