Watson v. Brazos Elec. Power Co-op., Inc.

• Decision Date: 20 March 1996
• Docket Number: No. 10-95-048-CV,10-95-048-CV
• Citation: 918 S.W.2d 639
• Parties: Ronald D. WATSON, Appellant, v. BRAZOS ELECTRIC POWER COOPERATIVE, INC., Appellee.
• Court: Texas Court of Appeals

Page 639

918 S.W.2d 639

Ronald D. WATSON, Appellant, v. BRAZOS ELECTRIC POWER COOPERATIVE, INC., Appellee.

No. 10-95-048-CV.

Court of Appeals of Texas Waco.

March 20, 1996.

Rehearing Overruled April 17, 1996.

Steven H. Stodghill, Lynn, Stodghill, Melsheimer & Tillotson, L.L.P., Dallas, David B. Christian, Meridian, for appellant.

Theron Hale, Murphy, Moore & Bell, Fort Worth, for appellee.

Before CUMMINGS and VANCE, JJ.

OPINION

PER CURIAM.

Ronald Watson sued Brazos Electric Power Cooperative, Inc. (Brazos) claiming that it was responsible for a fire that ravaged approximately 300 acres of his ranchland. The jury failed to find that any negligence of Brazos proximately caused the fire. After the court overruled Watson's motion for a judgment notwithstanding the verdict, he appealed.

Although Watson pled several theories of recovery, the court charged the jury only on his negligence claim--refusing to submit questions, instructions, and definitions on his other causes of action: nuisance, trespass, negligence per se, and gross negligence. The court also refused to submit Watson's instructions on "spoliation of evidence" and on the standard of care applicable to Brazos. The court's alleged charge errors form the basis of Watson's seven points of error. We agree with Watson that the court erred in refusing to submit an instruction on spoliation, a question and definition on trespass, and a question and definition on gross negligence. Therefore, we will reverse and remand for a new trial.

BRIEF FACTUAL BACKGROUND

In October of 1992, Watson purchased approximately 600 acres of land in Bosque County which he intended to use for a family cattle-ranching operation, wildlife sanctuary, and weekend getaway. Brazos had an easement across Watson's property that entitled it to place poles on the property and string electric lines across it.

On the morning of July 13, 1993, a cross-arm of one of Brazos' poles on Watson's property "gave way," allowing a sixty-nine kilovolt powerline to dangle above, or come into contact with, the ground. Electricity from the dangling line started a fire on Watson's property.

Meridian Volunteer Fire Fighters arrived and fought the fire. Approximately five acres of Watson's land initially burned. A Brazos crew arrived to repair the failed cross-arm while the fire fighters were there and remained on the scene after the fire fighters left. When the repairs to the cross-arm were complete, the crew left Watson's property. Sometime later that morning, the fire rekindled and ultimately burned approximately 300 acres.

One of the volunteers testified that the fire fighters believed the fire had been extinguished, but that it was still smoldering when they left. He also testified that they left the scene because the Brazos repair crew assured them that they (Brazos) would "be back in touch with us ... so we could make sure that the fire did not spread." The fire fighter testified that, to his knowledge, Brazos never contacted them again.

SPOLIATION OF EVIDENCE

In his seventh point, Watson alleges that the court should have instructed the jury on "spoliation of evidence" because the issue was raised by the written pleadings and the evidence.

Texas Rule of Civil Procedure 278 provides:

The court shall submit the questions, instructions and definitions ... which are raised by the written pleadings and the evidence. ... A judgment shall not be reversed because of the failure to submit other and various phases or different shades of the same question. Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment.... Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.

TEX.R.CIV.P. 278.

Watson's theory is that the cross-arm failed because its integrity had been compromised by woodpecker holes. He contends that Brazos was negligent in failing to conduct reasonable inspections of its poles that would have detected the holes. The testimony at trial established that Brazos employees, knowing that the cross-arm had been involved in a fire and that Watson was making a claim for damages, took the cross-arm into their possession and inspected it. Eventually, without taking pictures or otherwise preserving information about the break, Brazos employees allowed the cross-arm to be destroyed. Watson claims that the condition of the cross-arm was the single most important issue before the jury relevant to the negligence claim, that a presumption of spoliation was raised by the evidence, and that the instruction on spoliation was necessary to aid the jury in interpreting the legal effect of the destruction of the cross-arm.

Brazos argues that its failure to produce the cross-arm in this instance does not give rise to the presumption, and, even if it did, the court's failure to give the instruction was harmless because Watson was permitted to argue spoliation during final argument. We disagree.

"[F]ailure to produce evidence within a party's control raises the presumption that if produced it would operate against him, and every intendment will be in favor of the opposite party." Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex.App.--Fort Worth 1993, writ denied); H.E. Butt Grocery Co. v. Bruner, 530 S.W.2d 340, 343 (Tex.Civ.App.--Waco 1975, writ dism'd). This presumption arises whenever the party not in possession of the evidence has introduced evidence harmful to the party who had control of the evidence. Brewer, 862 S.W.2d at 159. "Under such circumstances, the failure of the [party in control of the evidence] to rebut the harmful evidence with evidence within its control raises a presumption that the unpresented evidence would also be unfavorable to the nonproducing party." Id.

Watson offered the testimony of Dan Fowler, the owner of an adjoining tract of land. Fowler testified that when he arrived on the morning of the fire, he observed that the fallen cross-arm had a "woodpecker hole in it that had eaten away half or better of the cross arm." He also testified that the hole was three to four inches in diameter. This testimony is clearly harmful to Brazos. Brazos, at one time, had possession of the critical piece of evidence, inspected it, and then allowed it to be destroyed. Its failure to produce the cross-arm, after Watson introduced evidence of a three to four inch woodpecker hole, raised the presumption of spoliation. Id.

The only evidence Brazos offered to "rebut" Watson's evidence of the woodpecker hole in the cross-arm was the testimony of its employees to the effect that the break was "unusually clean," and that no woodpecker holes were observed. Brazos' manager of operations and planning, William Townsend, testified that he did not take any pictures of the cross-arm when inspected it and that he made no effort to preserve it. He stated that he "didn't think [he] had any reason to keep [the cross-arm] even though [he] knew there had been a fire out at Mr. Watson's property and Brazos people had been in contact with him concerning damages[.]"

The evidence offered by Brazos is not the type of rebuttal evidence that precludes the application of the spoliation presumption. These facts are distinguishable from those in Brewer, where, although a fetal monitor strip was not produced by the defendants, they produced the information contained on the strip: hospital charts and nurse's notes--made contemporaneously with the strip and at a time before any medical problems had arisen so that no doubt was cast on their trustworthiness--were introduced into evidence. Id. Further, the charts and notes supported the defendant's contention that the unproduced fetal monitor strip did not contain evidence harmful to it. Id.

Spoliation was raised by the pleadings and the evidence, and the jury should have had the benefit of an instruction to properly evaluate the facts according to the charge. TEX.R.CIV.P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992). Since Brazos did not produce the cross-arm, in following a spoliation instruction, the jury would have to presume that the cross-arm contained a woodpecker hole three to four inches in diameter as Fowler testified. That evidence raises questions of fact regarding whether Brazos should have detected the hole, and if so, whether its failure to do so proximately caused the cross-arm to break and start the fire. Thus, the court erred when it failed to include Watson's substantially correct request for an instruction on the presumption. Id.

Brazos' contention that no harm resulted because Watson addressed the issue of spoliation during final argument to the jury is not persuasive. "The court's instructions become the law of the case and are to be accepted by the jury as the guide on which they must rely." Charter Oak Fire Ins. Co. v. Taylor, 658 S.W.2d 227, 230 (Tex.App.--Houston [1st Dist.] 1983, no writ); Texas Power & Light Company v. Lovinggood, 389 S.W.2d 712, 717 (Tex.Civ.App.--Dallas 1965, writ ref'd n.r.e.). Argument by counsel will not replace instruction by the court. See id. We cannot say that such error was harmless. Id; Dept. of Human Services v. Hinds, 904 S.W.2d 629, 637 (Tex.1995).

Point seven is sustained.

NUISANCE

Watson claims in his first point that the court erred in denying his motion for judgment notwithstanding the verdict (JNOV), or alternatively, in refusing to submit his definition and question on his nuisance claim. Nuisance has been defined in Texas jurisprudence as "a condition which substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it." ¹ Bible...