Werner v. Colwell

• Citation: 909 S.W.2d 866
• Decision Date: 05 October 1995
• Docket Number: No. D-4260,D-4260
• Parties: 38 Tex. Sup. Ct. J. 1113 I.M. WERNER, Trustee for the Eastex Meat Processing, Inc. Employee Benefit Trust, Karlo Werner, Individually, and Eastex Meat Processing, Inc., Petitioners, v. Dixie A. COLWELL, Respondent.
• Court: Texas Supreme Court

Page 866

909 S.W.2d 866

38 Tex. Sup. Ct. J. 1113

I.M. WERNER, Trustee for the Eastex Meat Processing, Inc.

Employee Benefit Trust, Karlo Werner,

Individually, and Eastex Meat

Processing, Inc., Petitioners, v. Dixie A. COLWELL, Respondent.

No. D-4260.

Supreme Court of Texas.

Argued Dec. 14, 1994.

Decided Aug. 1, 1995.

Rehearing Overruled Oct. 5, 1995.

John L. Dagley, Warren W. Harris, Houston, for petitioners.

Michael Thomas, Amy C. Thomas, Mexia, for respondent.

ENOCH, Justice, delivered the opinion of the Court on motion for rehearing, in which PHILLIPS, Chief Justice, and GONZALEZ, HECHT, CORNYN and OWEN, Justices, join.

We grant Dixie Colwell's motion for rehearing and withdraw our prior opinion and judgment. The following is now the opinion of the Court.

This is a personal injury suit brought by Dixie Colwell against Karlo Werner, in his capacity as her supervisor and co-worker, against Eastex Meat Processing, Inc., a non-subscriber under the Texas Workers' Compensation Act, in its capacity as her employer, and I.M. Werner, in her individual capacity. The trial court rendered judgment on the jury verdict against Karlo Werner and Eastex for negligence, and further rendered judgment against I.M. Werner, reciting that she was liable in her capacity as trustee of the Eastex Meat Processing, Inc. Employee Benefit Trust. The court of appeals affirmed. 857 S.W.2d 75. Because Karlo Werner owed no duty to Colwell as a fellow employee, because Colwell failed to prove that Eastex did not provide a safe work environment, and because I.M. Werner was neither named nor served in her capacity as trustee of the benefit plan, we reverse the judgment of the court of appeals and remand the cause for new trial.

I.

Karlo and I.M. Werner, as the sole shareholders of Eastex, created a trust to administer a private employee benefit plan obtained through Gulf States Underwriters, Inc. There is evidence that the Werners intended that the plan would compensate Eastex employees in the event they were injured in the course of their employment. I.M. Werner testified that she understood they were purchasing a standard workers' compensation insurance policy. The evidence establishes as a matter of law, however, that the benefit plan was inadequate to qualify for subscriber status under the effective Texas workers' compensation statutes.

Colwell, an employee of Eastex, suffered a back injury while loading a bag of meat into a customer's truck. This initial injury occurred on a Saturday morning after I.M. Werner had taken Karlo Werner home from work because he was intoxicated. Some eleven days later Colwell aggravated the injury when she and Karlo Werner had a particularly heavy work day involving heavy lifting. She then sued the Werners, in their individual capacities, and Eastex, alleging negligence. Colwell did not name as a party either the Employee Benefit Plan or I.M. Werner as trustee of that plan.

There were no objections to the four questions asked of the jury. The jury found (1) that Colwell was "injured while actually engaged in her employment with the Defendants" on the date of the first injury, and (2) that Colwell was "totally disabled" as defined in the Gulf States certificate of reinsurance. The jury further found (3) that Karlo Werner and Eastex were negligent in causing Colwell's injury, and (4) that her damages were $298,000. The trial court rendered judgment on the jury verdict for Colwell against Karlo Werner and Eastex for damages of $298,000.

The court also rendered judgment against I.M. Werner, in her capacity as trustee of the benefit plan, for past benefits, future medical expenses, and weekly benefits until the benefits received by Colwell reached the maximum payable under the plan of $250,000. This portion of the judgment does not reference any jury finding. Rather, the judgment recites that the "Court finds that I.M. WERNER appeared and testified, both individually and as Trustee for the EASTEX MEAT PROCESSING, INC. Employee Benefit Trust, No. T-343/250."

II.

Karlo Werner contests the judgment of the court of appeals on three grounds: that as a fellow employee, he owed no duty to Colwell; that there is no evidence of negligence proximately causing injury to Colwell; and that any negligence by Eastex, the corporate employer, may not be imputed to him because no alter ego or corporate veil issues were tried.

We have held that co-workers may sue each other for injuries inflicted upon each other in their common employment, resulting from personal negligence, even though an action would not lie against their employer when an employee breaches an independent duty of care owed to fellow employees. Fort Worth & D.C. Ry. Co. v. Mackney, 83 Tex. 410, 18 S.W. 949, 952 (1892). For example, our holding in Mackney was based, in part, upon a railroad engineer's negligent failure to keep a proper lookout, which resulted in a collision with an oncoming train and injuries to his fellow employees. Id. at 952. Likewise, there is an independent duty the breach of which is personal negligence if a fellow employee fails to drive an automobile or other vehicle in a reasonably safe and prudent manner, causing injury to third parties or a fellow employee. LeSage v. Pryor, 137 Tex. 455, 154 S.W.2d 446, 448 (1941).

As alleged and proven by Colwell, however, Karlo Werner's only failure was failing to remain on the job on the date of Colwell's injury. Colwell does not cite, nor have we found, any authority turning such a failure into a duty between co-workers. We hold that an employee does not owe a duty to his fellow employee to remain on the job.

III.

Because Eastex is a workers' compensation nonsubscriber, Colwell must establish negligence by Eastex in order to recover. Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955). Colwell alleges that she was injured due to Eastex's negligence in allowing her and a co-worker to load meat without the help of Karlo Werner on October 8, 1988. Eastex moved for new trial based on the absence of any evidence establishing negligence. See Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985) (holding that no evidence points of error are preserved by a motion for new trial). Colwell's claim fails because the evidence is legally insufficient to establish negligence by Eastex.

In order to establish negligence, evidence must be produced to establish a duty, a breach of that duty, and damages proximately caused by the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Although an employer is not an insurer of his employees' safety at work, an employer does have a duty to use ordinary care in providing a safe work place. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). This duty includes an obligation to provide adequate help under the circumstances for the performance of required work. Western Union Tel. Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977, 978 (1947). Colwell claims that Eastex breached this duty by requiring her and a co-worker to load meat without additional help. As plaintiff, Colwell bears the burden of presenting legally sufficient evidence that Eastex required Colwell and her co-worker to load meat where a reasonably prudent employer would not have done so.

According to all the witnesses, Colwell and other employees would occasionally participate in loading meat. While Karlo Werner normally did the loading, Colwell and others often helped. This was not the first time that Werner was not present when meat was loaded. Werner testified that when he was out on a delivery the other employees would be required to load meat. The question here is not whether Werner should have been at work, or whether Colwell should have been required to load meat, but whether Eastex required Colwell and Lillie Hunter to load meat when they were an inadequate work force. Colwell in essence argues that one man was sufficient to load meat but that two women were not, without presenting any evidence regarding the physical ability of these women or of Karlo Werner. There is no evidence that two employees constituted an inadequate work force to do the required loading.

In Great Atlantic & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249, 250 (1943), a grocery clerk injured himself while carrying a 100 pound sack of potatoes. We held that when the employee was doing the same character of work that he had always done and that other employees in other stores were required to do, there was no negligence. When there is no evidence that the lifting involved is unusual or poses a threat of injury, plaintiff has failed to establish a prima facie case. See Cabrera v. Delta Brands, Inc., 538 S.W.2d 795, 798-99 (Tex.Civ.App.--Texarkana 1976, writ ref'd n.r.e.) (finding negligence because common experience shows that attempting to move a metal object weighing over 100 pounds while in an awkward position poses a grave risk of injury).

In the present case, however, there was no testimony regarding the threat of injury to Colwell from lifting these bags of meat. Dr. LaPerriere, an expert for Colwell, simply stated that lifting objects is a common cause of back injury. The doctor did not differentiate the risk of injury from lifting a large rump roast, a bag of frozen meat or an entire side of beef. Such a broad generalization is no evidence that Colwell's activities on October 8 involved an increased risk of injury.

We emphasize that Colwell's only theory of negligence was that Eastex failed to provide an adequate work force. To the extent other duties are implicated by the facts they have not been pleaded or proved and cannot sustain the judgment. Because Colwell did not present any legally sufficient evidence regarding the adequacy of the work force on the date of her injury, the judgment of the court of appeals must be reversed.

IV.

Judgment shall not be rendered against one who was neither named nor served as a party defendant. TEX.R.CIV.P. 124....