Rainbow Exp., Inc. v. Unkenholz

• Decision Date: 03 October 1989
• Docket Number: No. 9714,9714
• Citation: 780 S.W.2d 427
• Parties: RAINBOW EXPRESS, INC., Appellant, v. Billy Joe UNKENHOLZ, Appellee.
• Court: Texas Court of Appeals

Page 427

780 S.W.2d 427

RAINBOW EXPRESS, INC., Appellant, v. Billy Joe UNKENHOLZ, Appellee.

No. 9714.

Court of Appeals of Texas Texarkana.

Oct. 3, 1989.

Rehearing Denied Oct. 24, 1989.

J. Gene Bailey, Longview, for appellant.

Brad Morin, Law Office of Jim Ammerman II, Marshall, for appellee.

GRANT, Justice.

In a personal injury action, Billy Joe Unkenholz obtained a judgment against Rainbow Express, Inc. for $38,155 for past damages, $176,200 for future damages and $150,000 for exemplary damages. Rainbow appeals the finding of gross negligence, the award for exemplary damages, and damages awarded for future physical pain.

Rainbow alleges that the trial court erred in submitting the gross negligence issue to the jury, in allowing exemplary damages in the absence of legally or factually sufficient evidence to support such damages, in instructing the jury that acts and omissions of Joe Dixon amounted to acts and omissions of Rainbow, in failing to submit jury questions inquiring whether Joe Dixon was an employee or vice-principal of Rainbow, in failing to order a remittitur of exemplary damages, in rendering judgment for $50,000 for future physical pain without sufficient evidence, and in failing to sustain its objections to the final argument by Unkenholz's attorney.

In the early morning hours of August 5, 1987, Jimmy Wayne Gehring left Houston, Texas, in his truck hauling tractor tires to Illinois. At approximately 7:00 a.m. as he was coming into Marshall, Texas, on Highway 59, the front left tire on his truck blew out, causing him to lose control of his truck. The truck crossed the median and struck the rear bumper of Unkenholz's gasoline tank truck, causing the tank truck to turn over. Unkenholz was afraid that the gasoline in his truck would ignite or explode, and in his haste to get out of the overturned truck he was injured.

We shall first address Rainbow's contentions that the evidence is factually and legally insufficient to support the finding of gross negligence.

In reviewing no evidence points, the court considers only the evidence tending to support the finding, viewing it in the light most favorable to the finding, giving effect to all reasonable inferences therefrom, and disregarding all contrary and conflicting evidence. Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981). Insufficient evidence points require that we consider and weigh all the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In In re King's Estate, the court did not hold that a jury verdict will be overruled "only if it shocks the conscience," as urged in the appellee's brief.

Ordinary negligence is raised to the level of gross negligence by the mental attitude of the defendant. This attitude must amount to conscious indifference to the rights, welfare and safety of others and can be inferred from all of the acts, omissions and circumstances. Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981). To establish gross negligence, there must be evidence which makes it fair to conclude that the defendant has decided to ignore the rights of the injured party, even in light of the probable and threatened injury. The defendant's mental state may be inferred when the evidence demonstrates that under the surrounding circumstances a reasonable person would have realized that his or her conduct created an extreme degree of risk to the safety of others. Williams v. Steves Industries, 699 S.W.2d 570 (Tex.1985).

The jury found that Rainbow, Joe Dixon, and Dennis Hockabout were negligent and that such negligence proximately caused Unkenholz's injuries. Rainbow did not appeal these findings. Therefore, the only question about negligence on appeal concerns gross negligence.

After the wreck, Unkenholz saw the tire that had blown out, and he asked Gehring whether he knew that his tire was so badly worn. Unkenholz and Calvin Davis testified that Gehring admitted to them that he had told his boss, Joe Dixon, that he needed new tires and that Dixon told him to go ahead and drive on the old tires to Illinois. Gehring confirmed by his testimony that this dialogue with Dixon occurred. Dixon denied that Gehring had made this request. Dennis Hockabout, a terminal manager for Rainbow, inspected Gehring's rig the day before the accident and testified that he found nothing wrong with the tires. Hockabout further testified that there was thirty-five to forty percent remaining above the marker line (which is an inset of rubber between the tread to show how much the tread is worn).

There was testimony that in order to meet the Department of Transportation's (DOT) standards for a truck tire, the tire must have four thirty-seconds of an inch tread. ^* The DOT regulations set forth that the purpose for establishing criteria for the inspection of motor vehicles for such requirements is to reduce deaths and injuries attributable to the failure or inadequate performance of matters covered by those regulations. 49 C.F.R. § 570.52 (1988). Testimony was conflicting as to whether or not the tire in question met this tread depth standard.

Joe Dixon, the owner of the truck and an experienced truck driver, measured the tire tread on the tire fragments at two different places, and he testified that the tire gauge read six thirty-seconds of an inch. He admitted that if the tire had any spot on it that was below four thirty-seconds, it did not meet the DOT standard.

Calvin Davis, a supervisor of transportation for Texaco, Inc. who was in charge of the safety and inspection of about 100 trucks for that company, testified that in his opinion the tire did not have enough tread to meet the DOT standard. He testified that some parts of the shoulder were high and some parts were low and that if the tread were measured in certain places, it would be less than four thirty-seconds of an inch of rubber. He further testified that his company requires that the front tires exceed the federal regulations by requiring six thirty-seconds of an inch of tread.

Gene Fletcher, a highway patrolman for nineteen years, testified that in his opinion there was not enough tread on the tire that had blown out and that one of the dangers of insufficient tread was a blowout.

There was testimony concerning the danger which was created when a tire did not have sufficient tread. Calvin Davis answered questions concerning the inherent danger as follows:

Q. Could you tell the jury what the danger is of driving with a tire like this on the front of your tractor-trailer rig?

A. The heat buildup in these--the places right here is going to be quite a bit greater causing it to give out in that spot.

Q. This was in August, would that have any effect on it, the time of the year?

A. Oh, yes, the hotter the weather, the hotter the tire.

Q. And what would happen if the tread separates?

A. It comes apart like this.

Q. And then, I guess if you had the blowout, you could be--to be expected?

A. I see the difference in the thickness of the tire here and here.

Q. Okay. Mr. Davis, as a supervisor for Texaco, would you run that tire on one of your trucks?

A. No, I would not.

There is evidence that Gehring called the need to replace the tires to Dixon's attention. Hockabout was also aware of the condition of the tire shortly before the blowout. There is ample evidence to show that Dixon and Hockabout should have been aware of the threat of a blowout. However, the burden on Unkenholz is not merely to show that they were aware or should have been aware of the risk of a blowout, but Unkenholz must also show that they were aware that the blowout itself would create an extreme degree of risk. The only direct testimony concerning the potential of a blowout to cause an accident was from patrolman Gene Fletcher. He testified that he believed that any kind of vehicle could be kept under control even with a blowout. In later testimony, Fletcher qualified this statement:

Q. Okay. In other words, a blowout will never result in an accident?

A. Oh, I didn't say that. I said, you can control it, keep it on your side of the road.

In his brief, Unkenholz takes the position that a probable loss of control is not the issue, because there was an actual loss of control. This merely argues the adage that hindsight is 20/20. To obtain exemplary damages, Unkenholz must show that prior to the occurrence, Dixon and Hockabout were aware that the situation presented a probable and threatened injury. Their mental state may then be inferred from the action or inaction of Rainbow's agents. Rainbow argues that, at the most, Dixon's and Hockabout's decision not to replace the tires was an error in judgment and not gross negligence. However, Unkenholz may prove gross negligence by showing that under the surrounding circumstances a reasonable person would have realized that this conduct created an extreme degree of risk to the safety of others. Williams v. Steves Industries, 699 S.W.2d at 573. If the situation is one in which the act would reasonably be thought to be highly dangerous, the courts have not hesitated to allow punitive damages upon a finding of gross negligence. Williams v. Steves Industries, 699 S.W.2d at 573.

Rainbow points out that there is no evidence that the blowout of a front tire on a truck would cause any danger. While there is no direct evidence as to the probability of deaths or injuries resulting from such blowouts, there is ample evidence from which a jury could infer such danger. Unkenholz testified as follows:

You don't leave a tire like that on a truck for the steering axle. That's the only safety thing that a man has in that truck is his steering, and if you put tires on the steering axle that's going to blow out or have the possibility of blowing out, you're putting him and everybody on the highway in jeopardy.

There is also the testimony of Calvin Davis that he would not run the trucks under his supervision with a front tire in that condition. Officer Fletcher testified that h...