Texas Industries, Inc. v. Lucas

• Decision Date: 05 June 1986
• Docket Number: No. C14-81-2903-CV,C14-81-2903-CV
• Citation: 715 S.W.2d 683
• Parties: TEXAS INDUSTRIES, INC., et al, Appellants, v. Randall Wade LUCAS, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 683

715 S.W.2d 683

TEXAS INDUSTRIES, INC., et al, Appellants, v.Randall Wade LUCAS, Appellee.

No. C14-81-2903-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 5, 1986.

Rehearing Denied Aug. 14, 1986.

Brian M. Chandler, Royal H. Brin, Jr., Houston, for appellants.

John C. Werner, W. James Kronzer, Houston, for appellee.

Before JUNELL, DRAUGHN and ELLIS, JJ.

OPINION

JUNELL, Justice.

The supreme court remands this personal injury action to this Court for determination of whether the evidence is sufficient to support jury findings that appellantEverman Corporation was negligent in advising its subcontractor Precast Corporation that only 1 1/4 inch rigging equipment was necessary for the construction job and that such negligence was a proximate cause of the accident.

Appellee moved to dismiss this appeal on the grounds that appellant's point of error constituted a no evidence point whereas the supreme court remanded the case to this court for consideration of an insufficiency of the evidence point.Appellee claims that because this Court may consider only the point or points specifically remanded and because the supreme court has already decided the no evidence point briefed by appellant on remand, we are without authority to consider appellant's arguments and must dismiss this appeal.We disagree with appellee's contentions.

In appellant's brief submitted to this Court in the previous appeal of this case, appellant properly preserved the insufficiency of the evidence point in points of error four and five.On remand we are entitled to consider all briefs submitted by the parties.Appellant's insufficiency of the evidence point of error is properly before us.Furthermore, as appellee conceded in oral argument, in light of the Texas Supreme Court opinion on motion for rehearing in Pool v. Ford Motor Company, 715 S.W.2d 629, 29 Tex.Sup.Ct.J. 30(Apr. 5, 1986), since the proper error is apparent from a reading of appellant's brief on remand, we must consider the insufficiency point.Appellee's motion to dismiss is overruled.

In our original opinion, Texas Industries, Inc. v. Lucas, 634 S.W.2d 748(Tex.App.--Houston [14th Dist.]1982), reversedTexas Industries, Inc. v. Lucas, 696 S.W.2d 372(Tex.1985)we held there was no evidence that Everman was negligent in advising Precast employees that 1 1/4"'' rigging equipment was all that was necessary to do the job.

The supreme court held there was some evidence that Everman was negligent in giving that advice and charges us on remand to determine whether the evidence is sufficient to support the jury finding of negligence on Everman's part.

The pertinent special issues and jury findings read as follows:

Special IssueNo. 14--Do you find from a preponderance of the evidence that prior to the occurrence in question, employees of EVERMAN CORPORATION advised employees of PRECAST ERECTORS, INC., that 1 1/4"'' rigging equipment was all that was necessary for the job?

Answer--We do.

If you have answered Special IssueNo. 14"We do," and only in that event then answer:

Special IssueNo. 15--Do you find from a preponderance of the evidence that such advice was negligence?

Answer--We do.

If you have answered Special IssueNo. 15"We do," and only in that event then answer:

Special IssueNo. 16--Do you find from a preponderance of the evidence that such advice was a proximate cause of the occurrence in question?

Answer--We do.

Appellee's injury occurred when the rigging used to lift a concrete beam off a truck failed.The beam fell on appellee's leg.The beam had been manufactured by Texas Structural Products, Inc., a subsidiary of Texas Industries, Inc.(TXI).According to the plans and specifications furnished by Everman to the TXI subsidiary, each beam was supposed to have two types of lifting inserts.The edge inserts were to be 1 1/4 inch and the face inserts were to be 1 inch in diameter.The rigging consisted of bolts and bell rings.A bolt was placed through a bell ring and screwed into the insert in the beam.A crane would then be secured to the bell ring eyeholes by use of cables.The beam would then be lifted from the truck.

When the beam that caused the accident arrived at the job site, Precast discovered it had only 1 inch inserts.The organization of the job site made it necessary to unload this beam before work could proceed.Precast did not have the 1 inch rigging equipment needed to move the beam.The workmen tried to improvise by using a 1 inch bolt with a 1 1/4 inch bell ring.Unfortunately the weight of the beam sheared off the end of the bolt causing the bolt to slip through the bell ring and the beam to fall on appellee.

Appellee's recovery against Everman was based on the jury finding Everman had been negligent in advising Precast that only 1 1/4 inch rigging equipment was needed for the job.

Before the job began Precast foreman W.A. Lucas, father of appellee, met several times with Everman's representatives to determine what equipment Precast would need to take to the job site.Lucas testified that he looked at a full set of plans and specifications, that all the plans called for 1 1/4 inch edge inserts, that he took Everman's word that the beams would have only 1 1/4 inch edge inserts, and that Everman told him every piece of precast would be shipped with 1 1/4 inch edge inserts.

Charles Ray Rice, Precast's supervisor in charge of erection at the job, testified that he had no idea 1 inch materials would be used on the job, that contractors normally take only equipment required by specifications to a job site, that it would be a practical impossibility to carry equipment not required by the plans and specifications to a job, that W.A. Lucas had told him only 1 1/4 rigging equipment would be needed, and that the beam would not have posed a problem if he had known beforehand that 1 inch equipment would be needed.

Everman's president Earl Haley testified that Everman shipped the beams flat and expected the erector would use the 1 inch face inserts, rather than the 1 1/4 inch edge inserts to lift the beams.

We find the evidence set forth above sufficient to support the jury findings that Everman was negligent in advising Precast that only 1 1/4 inch equipment would be needed and that such negligence was the proximate cause of the accident.

Lucas testified that he was told only 1 1/4 inch equipment would be needed.The plans and specifications called for 1 1/4 inch edge inserts.Rice testified that if the proper 1 inch equipment had been available, the accident could have been avoided.Everman's president stated Everman expected the beams to be lifted with the 1 inch face inserts rather than the 1 1/4 inch edge inserts.If Everman expected the 1 inch face inserts to be used, then Everman clearly misinformed Precast in stating that only 1 1/4 inch equipment was needed on the job.Although not overwhelming, the evidence is sufficient to support the jury finding of negligence on Everman's part.We overrule appellant's points of error four and five of its original brief and its single point of error in its brief filed on remand.

In the trial courtappellee had been awarded a judgment against Texas Industries, Inc. and Everman Corporation, jointly and severally in the amount of $1,913,450.94.On the previous appeal to this court, appellee filed a remittitur of $344,316.60 leaving the net amount of $1,569,134.34 awarded to appellee.We now render judgment in favor of appellee against Everman Corporation in the sum of $1,569,134.34, together with interest thereon at the rate of 9% per annum from April 4, 1981 until fully paid.

Also in the trial courtUnited States Fire Insurance Company was awarded a judgment against Texas Industries, Inc. and Everman Corporation, jointly and severally, in the amount of $60,584.34, together with interest thereon at the rate of 9% per annum from April 4, 1981 until fully paid.That judgment, as against Everman Corporation, is affirmed.

Also in the trial court the law firm of Werner & Rusk was awarded a judgment against Texas Industries, Inc. and Everman Corporation, jointly and severally, in the amount of $25,964.72, together with interest thereon at the rate of 9% per annum from April 4, 1981 until fully paid.That judgment, as against Everman Corporation, is affirmed.

OPINION ON MOTION FOR REHEARING

Both appellantEverman Corporation and appelleeRandall Wade Lucas have filed motions for rehearing.

Appellee's motion complains of this court's failure to award prejudgment interest.Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549(Tex.1985) created a new prejudgment interest rule applicable to all future cases as well as those still in the judicial process involving wrongful death, survival and personal injury actions.Appellee argues this case is one still in the judicial process within Cavnar and therefore he is entitled to prejudgment interest.

For the reasons set forth below we hold appellee is not entitled to prejudgment interest.

In the trial courtappellee's third amended original petition contained a prayer for "judgment of the defendants, jointly and severally, for his damages as alleged herein, for interest on such judgment at the legal rate, for costs of court, and for such other and further relief to which he may show himself justly entitled."

The following elements of damages were alleged in said petition: past and future physical pain and mental anguish, loss of earnings and earning capacity, medical expenses and disfigurement.The petition contains no allegation of any right to prejudgment interest as damages.

After the jury verdict was returned, appellee moved for judgment on the verdict without in any way requesting an award of prejudgment interest.Following the trial court's rendition of judgment with post-judgment interest only, appellee made no request of the trial court that the judgment be modified to include prejudgment interest.On appeal to this court in 1...