Srite v. Owens-Illinois, Inc.
| Decision Date | 18 November 1993 |
| Docket Number | INC,Nos. 01-91-01383-CV,OWENS-ILLINOI,s. 01-91-01383-CV |
| Citation | 870 S.W.2d 556 |
| Parties | James F. SRITE and Erma M. Srite; James H. Bell and Mickey Bell; Estate of Otis Burt, Mable Burt, Ronald Burt, Kathy Hunter, and Gloria Polumbo, Appellants, v., Fibreboard Corporation, and Pittsburgh-Corning Corporation, Appellees, Raymond JOCHIM and Mary Jochim; Clarence Ben and Ednora Ben; Erma Rae Friley, Individually and as Representative of the Estate of Joseph Friley; James Morris and Helen Morris; Robert E. Bledsoe and Ellois Bledsoe; Clyde Spikes and Ruby Spikes, Appellants, v., Fibreboard Corporation, Pittsburgh-Corning Corporation, and Keene Corporation, Appellees. to 01-91-01387-CV and 01-92-00285-CV to 01-92-00288-CV. (1st Dist.) |
| Court | Texas Court of Appeals |
Richard N. Countiss, Burrow, Countiss & Barrie, L.L.P., Umphrey, Williams & Bailey, Houston, for appellants.
Strong, Pipkin, Nelson & Bissell, L.L.P., Beaumont, James H. Powers, Gwendolyn S. Frost, Roberts, Markel, Folger & Powers, Houston, Mr. John Cummings, Hassard, Bonnington, Rogers & Huger, R. Lyn Stevens, Nicholas S. Baldo, Weller, Wheelus & Green, Beaumont, for appellees.
Before HEDGES, DUGGAN and WILSON, JJ.
In this case, we are asked to decide the proper standard of appellate review when a jury finds liability yet awards no damages. We further must determine the proper measure of prejudgment interest under Cavnar v. Quality Control Parking, 696 S.W.2d 549 (Tex.1985), in the instance of a latent disease whose manifestation potentially occurs many years after the injury. From nine separate asbestos cases that were grouped for trial, appeal was taken by plaintiffs as follows: six workers and their wives, Clyde Spikes and Ruby Spikes, Robert Bledsoe and Ellois Bledsoe, Clarence Ben and Ednora Ben, Raymond Jochim and Mary Jochim, James Morris and Helen Morris, and James Bell and Mickey Bell; one worker whose wife died before trial, James Srite; and the estates and families of two workers, Otis Burt and Joseph Friley. Defendants are Owens-Illinois, Inc.; Fibreboard Corporation; and Pittsburgh-Corning Corporation. Additionally, Keene Corporation is an appellee in the Friley, Morris, Jochim, Ben, Bledsoe, and Spikes cases.
Trial was to a jury, which considered strict liability and negligence theories of recovery. The jury was asked to assess the past and future damages of the workers for physical pain, mental anguish, loss of earning capacity, physical impairment, and future medical care. It was also asked to assess the past and future damages of the wives for loss of household services and loss of consortium. The jury found:
1) all defendants were liable for negligence that proximately caused injury to the living workers and the death of the deceased workers.
2) each worker was contributorily negligent.
3) all defendants were strictly liable, except in the death of Joseph Friley.
4) defendants were not liable for gross negligence.
The jury also determined the percentage of injury caused by each asbestos company and each worker. It assessed from three percent to five percent of the fault to each worker, and the remaining 95 percent to 97 percent to the asbestos companies.
The jury awarded damages as follows
James Bell Past: $0 Future: $30,000
Mickey Bell Past: $0 Future: $ 5,000
Clarence Ben Past: $0 Future: $40,000
Ednora Ben Past: $0 Future: $ 5,000
Robert Bledsoe Past: $0 Future: $65,000
Ellois Bledsoe Past: $0 Future: $0
Raymond Jochim Past: $0 Future: $45,000
Mary Jochim Past: $0 Future: $10,000
James Morris Past: $0 Future: $30,000
Helen Morris Past: $0 Future: $ 5,000
Clyde Spikes Past: $20,000 Future: $25,000
Ruby Spikes Past: $0 Future: $10,000
James Srite Past: $20,000 Future: $25,000
Otis Burt Past: $25,000
Mable Burt Past: $20,000
Joseph Friley Past: $20,000
Erma Friley Past: $10,000
The jury also awarded wrongful death damages to the Burt and Friley families. It found facts that led the trial court to impose a limitations bar on recovery by the Spikes family. Judgments were rendered on the verdicts after damages were reduced by comparative causation findings and settlement credits.
Plaintiffs appeal the judgments on the basis that the jury verdicts are inherently inconsistent. They argue that under Texas law and based on the trial record, a jury cannot find liability and future damages but award no past damages. They complain that the limitations finding in the Spikes cause is deficient because defendants did not meet their evidentiary burden. They claim that the trial court erred by allowing two expert witnesses to testify despite the incomplete description of their testimony in discovery responses. Finally, they maintain that the trial court picked an incorrect starting date for prejudgment interest.
In point of error one, plaintiffs argue that the jury's failure to award past damages to James Bell, Mickey Bell, Clarence Ben, Ednora Ben, Robert Bledsoe, Ellois Bledsoe, Raymond Jochim, Mary Jochim, James Morris, Helen Morris, and Ruby Spikes is against the great weight and preponderance of the evidence. In point of error two, plaintiffs maintain that they conclusively established their entitlement to past damages. In point of error three, they contend that the jury reversibly erred by failing to award damages for every element of damages they proved.
Under these first three points of error, plaintiffs direct our attention to the "zero damages rule," which they assert requires us to reverse and remand for a new trial. The zero damages rule stands for the proposition that if a jury finds liability, it must award damages if there is any objective evidence of damages. Hammond v. Estate, 643 S.W.2d 222, 223 (Tex.App.--Eastland 1981, writ ref'd n.r.e.); Kraatz v. Faubion, 617 S.W.2d 277, 279 (Tex.Civ.App.--Eastland 1981, no writ); Dupree v. Blackmon, 481 S.W.2d 216, 221 (Tex.Civ.App.--Beaumont 1972, writ ref'd n.r.e.).
We are unpersuaded by plaintiffs' argument. The zero damages rule conflicts with the standard of review articulated by the Texas Supreme Court in the case of Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). Under the Pool standard, an appellate court first must review the entire record to determine if any evidence supports the jury's award of zero damages. If some evidence is found in support of the jury's failure to award damages, then the court must weigh all the evidence. Reversal is authorized only if the court expressly determines that the finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 635; see generally R. Gonzales & R. Gilbreath, Appellate Review of a Jury's Finding of "Zero Damages," 54 TEX.BAR J. 418, 419 (May 1991) (). This Court has concluded that if a plaintiff has objective symptoms of injury, the plaintiff's evidence cannot be disregarded by the jury. Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.App.--Houston [1st Dist.] 1992, no writ). If, however, the plaintiff's complaints are subjective in nature and therefore incapable of direct proof, the jury may award zero damages. Hyler v. Boytor, 823 S.W.2d 425, 427-28 (Tex.App.--Houston [1st Dist.] 1992, no writ) (citing Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex.App.--Dallas 1988, no writ)).
If a party establishes damages as a matter of law, the jury is not at liberty to award zero damages. Lowery v. Berry, 269 S.W.2d 795, 796-97 (Tex.1954). To evaluate plaintiffs' claims that they conclusively proved past damages, we first consider only evidence that supports the jury finding and reject all evidence or reasonable inferences to the contrary. If there is no evidence to support the jury's finding of zero damages, we then examine the entire record to determine if the plaintiffs' damages were proved as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982).
In considering a challenge that a finding is against the great weight and preponderance of the evidence, we follow the teachings of Pool and adhere to the standard of review fashioned by In re King's Estate, 244 S.W.2d 660, 661 (Tex.1951). Under that analysis, we consider and weigh all of the evidence in the case, both the evidence that tends to support the existence of a vital fact, and evidence that tends to disprove its existence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We set aside a jury verdict and remand for a new trial only if we conclude that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 244 S.W.2d at 661; Robinson v. Minick, 755 S.W.2d 890, 891 (Tex.App.--Houston [1st Dist.] 1988, writ denied). In accordance with this Court's precedent, we then consider whether the indicia of injury are more subjective than objective. Hyler, 823 S.W.2d at 427.
We acknowledge the general rule that a jury finding is entitled to great deference by the appellate court, unless the record reflects that the jury was motivated by passion, prejudice, or something other than conscientious conviction. International Harvester Co. v. Zavala, 623 S.W.2d 699, 708 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.) (citing Donaghey v. Van Cleave, 456 S.W.2d 524 (Tex.Civ.App.--Houston [1st Dist.] 1970, writ ref'd n.r.e.)). A jury has alternatives available when presented with conflicting evidence, and it may believe one witness and disbelieve others. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). It is the sole judge of the credibility of the witnesses and...
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