Pedernales Elec. Co-op., Inc. v. Schulz, 6071

• Decision Date: 07 June 1979
• Docket Number: No. 6071,6071
• Citation: 583 S.W.2d 882
• Parties: PEDERNALES ELECTRIC COOPERATIVE, INC., and the Lower Colorado River Authority, Appellants, v. Eric H. SCHULZ et al., Appellees.
• Court: Texas Court of Appeals

Page 882

583 S.W.2d 882

PEDERNALES ELECTRIC COOPERATIVE, INC., and the Lower Colorado River Authority, Appellants, v. Eric H. SCHULZ et al., Appellees.

No. 6071.

Court of Civil Appeals of Texas, Waco.

June 7, 1979.

Rehearing Denied July 12, 1979.

Larry W. Wise and Tom Long, Long, Coleman, Dugger & Cotten, Austin, for appellants.

Charles Morris, Morris & Craven, Austin, for appellees.

OPINION

McDONALD, Chief Justice.

This is an appeal by defendants PEC and LCRA from judgments against them for plaintiffs Eric and Kenneth Schulz in a personal injury case.

Plaintiffs Eric and Kenneth Schulz sued defendants PEC and LCRA for personal injuries sustained when the mast of a sailboat operated by Kenneth Schulz on Lake Travis, and in which Eric Schulz was a passenger, came in contact with a powerline owned by PEC, and engineered and maintained by LCRA.

Trial was to a jury which found:

1) The electric current carrying wire was maintained lower than it would have been maintained by one using ordinary care.

2) Such action was a proximate cause of the accident.

3) Such action was gross negligence.

10) thru 14) Plaintiff Kenneth Schulz was guilty of contributory negligence which was a proximate cause of the accident.

14) Eric Schulz's damages were:

a) $4000. past pain and mental anguish.

b) $1000. future pain and mental anguish.

c) $300. future medical expenses.

d) $4000. disfigurement.

15) Kenneth Schulz' damages were:

a) $500. past pain and mental anguish.

16) Kenneth Schulz' negligence was 45% Cause of the occurrence. Defendants' negligence was 55% Cause of the occurrence.

17) Awarded $4,900 exemplary damages to Eric Schulz.

18) Awarded $100 exemplary damages to Kenneth Schulz.

The trial court rendered judgment: for Eric Schulz against PEC and LCRA for $9,300; for Kenneth Schulz against PEC and LCRA for $275; for Eric Schulz against PEC for $4,900 exemplary damages; and for Kenneth Schulz against PEC for $55. exemplary damages.

Defendants appeal on 30 points.

Points 1 thru 5 assert the trial court erred in rendering judgment against PEC for exemplary damages for the reason that Article 2212a VATS has abolished gross negligence as a viable ground of recovery and has substituted therefor a comparison of negligence of all degrees between the parties.

Defendants note that the Supreme Courts of Wisconsin and New Jersey in Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105, and Draney v. Bachman, 138 N.J.Super. 503, 351 A.2d 409, pursuant to passage by Legislatures of those states of a comparative negligence law, abolished gross negligence, and urge this court to do the same for Texas.

Prior to September 1, 1973 a finding of contributory negligence barred recovery by a plaintiff of any recovery.

Article 2212a VATS, effective September 1, 1973 provides that contributory negligence shall not bar recovery in an action to recover damages for negligence resulting in death or injury if such negligence is not greater than the negligence of the defendant, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the party recovering.

The reasoning of the Wisconsin Supreme Court in Bielski was based on the concept of gross negligence as an ameliorative factor in avoiding the contributory negligence doctrine, i. e., contributory negligence did not bar recovery of damages for gross negligence in Wisconsin. The New Jersey Supreme Court in Draney states: "Solely insofar as our 'gross negligence' concept is concerned, we can agree with the resolution of the problem as discussed in Bielski ".

In Texas the overriding policy consideration in the award of exemplary damages is as a punishment for gross negligence as distinguished from compensation. Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520; and a finding of contributory negligence on the part of a plaintiff barred recovery by him of recovery of exemplary damages from a defendant found grossly negligent prior to the passage of Article 2212a. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607; and bars the proportionate part attributable to plaintiffs' contributory negligence since the passage of Article 2212a.

The reasoning of Bielski and Draney have no application in Texas.

Moreover, had the Legislature desired to abolish the recovery of exemplary damages for gross negligence they could have expressly done so.

Points 1 thru 5 are overruled.

Points 6 thru 11 assert the trial court erred in rendering judgment against PEC for exemplary damages, (for gross negligence committed by LCRA), absent pleadings, evidence and findings that PEC authorized the "manner of the act" or "ratified or approved the act" insofar as the height of the wire is concerned.

The evidence is that PEC, owner of the powerline involved in the accident, had contracted with LCRA to engineer, supervise the construction of, and thereafter maintain the line. Pursuant to the Texas Tort Claims Act, Article 6252-19 Sec. 3, LCRA as a governmental entity is not subject to exemplary damages.

Punitive damages can properly be awarded against a master or other principal because of an act by an agent if the agent was employed in a managerial capacity and was acting in the scope of employment. King v. McGuff, 149 Tex. 432, 234 S.W.2d 403; Fisher...