Cropper v. Caterpillar Tractor Co.

754 S.W.2d 646, 31 Tex. Sup. Ct. J. 459, 1988 Tex. LEXIS 61, 1988 WL 51623

• Court: Texas Supreme Court
• Decided: May 25, 1988
• Docket: C-6076
• Status: Published

Opinions

WALLACE, Justice.

In this personal injury action, we decide whether a court of appeals has the authority to remand a cause for a new trial when it concludes that a jury’s failure to find in favor of a party on a particular issue is “against the great weight and preponderance of the evidence.” We hold that a court of appeals has the authority to review a “failure to find” in the same manner in which it may review a jury’s findings. TEX. CONST., art. V, § 6. We further hold that this review does not violate the right of trial by jury. TEX. CONST., art. I, § 15-

Anthony Paul Cropper was severely injured while operating a Caterpillar 651B Water Wagon, and brought suit against the Caterpillar Tractor Company (Caterpillar) on theories of negligence and strict products liability. The evidence at trial showed that Cropper was spraying water on an open field in order to keep the amount of dust from his employer’s nearby mine at an acceptable level, and ran over the unfolded metal tracks of a backhoe tractor being repaired by another employee. After the water wagon rolled over the tracks, the impact of the wagon’s cab returning to the ground forced the operator’s chair to bottom out, resulting in a compression fracture of Cropper’s lower back and other injuries.

The jury answered all issues favorably to Cropper, including the following defensive issue submitted at Caterpillar’s request:

Was ANTHONY CROPPER negligent in the operation of the Water Wagon on the occasion in question?

ANSWER: No.

The trial court rendered judgment on the jury’s verdict, awarding Cropper over $2.5 million in actual damages and assessing $250,000 in punitive damages against Caterpillar.

On appeal Caterpillar contended, among other things, that: (1) the jury’s failure to find contributory negligence was against the great weight and preponderance of the evidence; (2) the evidence supporting several of the jury’s findings was factually insufficient; and (3) the damages awarded by the jury were excessive and not supported by the evidence, thus authorizing the court of appeals to order a remittitur. The court of appeals reversed and remanded for new trial, sustaining the first of these contentions without passing upon the remainder of Caterpillar’s points of error. 720 S.W.2d 824.

Although Cropper contends that Caterpillar waived this first contention by failing to assign it as error in its motion for new trial, we find no merit to this argument. Caterpillar contended in its motion for new trial that the jury’s negative answer to the above issue was “so against the great weight and preponderance of the evidence as to be manifestly unjust”; and thereby preserved this complaint. TEX.R. CIV.P. 324. We granted Cropper’s application for writ of error to consider the following questions:

(1) when a jury refuses to find in favor of a party on a particular fact issue, and that party had the burden of proof at trial on this particular issue, is it within the authority of the court of appeals to review the jury’s action in this respect and, upon concluding that the jury’s “negative finding” was against the great weight and preponderance of the evidence, remand for a new trial?

(2) if such power exists, does it violate the right of trial by jury?

(3) if such power exists and does not violate the right of trial by jury, was that power properly exercised in this case?

Although these questions are somewhat intertwined, our initial focus is upon the source and parameters of the courts of appeals’ jurisdiction over fact questions.

I.

The constitutional origin of appellate court jurisdiction over fact. questions.

The Texas Constitution confers upon the courts of appeals “appellate jurisdiction ... under such restrictions and regulations as may be prescribed by law,” and further provides that “the decision of said courts shall be conclusive upon all questions of fact brought before them by appeal or error.” TEX. CONST, art. V, § 6. These two clauses have independent significance, and have quite different consequences upon the allocation of jurisdiction between this court and the intermediate appellate courts. The former operates as a general grant of “appellate jurisdiction,” and is in fact the only clause in Article V which purports to vest judicial authority in the intermediate courts. The latter, which will be referred to as the “factual conclusivity clause,” functions not as a grant of authority to the courts of appeals but as a limitation upon the judicial authority of this court. Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69 (1898).

In one of the earliest reported decisions of this court, we held that a court operating under a general grant of “appellate jurisdiction” had the power to review fact questions. Bailey v. Haddy, Dallam 376 (1841). Then, as now, the constitution provided that the right of trial by jury should remain “inviolate.” REPUB. OF TEX. CONST., Ninth Declaration of Right (1836). That same constitution vested this court with “appellate jurisdiction,” just as our present constitution confers such authority upon the courts of appeals. REPUB. OF TEX. CONST., art. IV, § 8. Construing the constitution and related statutes, we explicitly recognized that the grant of “appellate jurisdiction” empowered this court to review both fact and law questions, although we recognized that such powers might not exist in a common law court reviewing a jury-tried case. Dallam at 378. The court concluded that in a jury-tried case, its powers of review embraced those of a common law court as well as a civil law court or court of equity, subject to the restriction that the right of trial by jury should remain inviolate. Id.; see also Republic v. Smith, Dallam 407 (1841) (recognizing that the court could review both the fact and the law questions in a criminal case).

In the fifty year interval between the Bailey decision and the constitutional amendments of 1891, we continued to recognize that this court had the power to review jury verdicts on factual issues. Due to the court’s deference to jury verdicts in general, the cases where review actually led to reversal are far less in number than the cases where we merely acknowledged this power of review. Nonetheless, they exist. The cases where this power was apparently exercised include Hall v. Layton, 16 Tex. 262 (1856) appeal after remand 25 Tex. 204 (1860); Garvin v. Stover, 17 Tex. 292 (1856); Chandler v. Meckling, 22 Tex. 37 (1858); Carlton v. Baldwin, 22 Tex. 724 (1859) appeal after remand 27 Tex. 572 (1864); McQueen v. Fulgham, 27 Tex. 464 (1864); Willis v. Lewis, 28 Tex. 185 (1866); Weisiger v. Chisholm, 28 Tex. 780 (1866); Harnage v. Berry, 43 Tex. 567 (1875); Houston & Tex. Cent. Ry. Co. v. Knapp, 51 Tex. 569 (1879); Redus v. Burnett, 59 Tex. 576 (1883); Houston & T.C. Ry. Co. v. Schmidt, 61 Tex. 282 (1884); Dimmit v. Robbins, 12 S.W. 94 (Tex.1889); and Missouri Pac. Ry. Co. v. Somers, 14 S.W. 779 (Tex.1890). In Somers, the court briefly summarized the nature of its authority to reverse jury verdicts on fact issues:

Although this court has the power to review a case upon the facts, and to set aside a verdict which has evidence to support it, that power has been reluctantly exercised. But it is the right and duty of this court to set aside a verdict, when it is against such a preponderance of the evidence that it is clearly wrong.

14 S.W. at 779.

By creating the courts of appeals and vesting them with “appellate jurisdiction,” the 1891 amendment to the constitution conferred upon those courts the same power over fact questions that this court exercised prior to that amendment. Choate, 44 S.W.2d at 69-70. Thus, the court below, in reviewing the jury’s verdict in favor of Cropper, was possessed of the same powers that this court could previously exercise prior to 1891, the same powers alluded to in Somers. Id. In the exercise of those powers, the court below concluded that “the jury’s finding that Cropper was not negligent in his operation of the water wagon was so contrary to the great weight of the evidence as to be manifestly unjust.” 720 S.W.2d at 826. Although the court below was technically incorrect in implying that it was reviewing a jury’s finding, there can be no doubt that it had the power to reverse and remand unless there is some dispositive distinction between appellate review of “findings” and appellate review of “non-findings” or “failures to find.”

II.

The authority of the courts of appeal to review a “non-finding.”

In Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986), the court recently intimated in dicta that there might be some such distinction between review of findings and nonfindings. While recognizing that the constitution empowers courts to “unfind” a jury’s findings, the court observed that it was “more difficult to rationalize” why a non-finding should be reviewable under a great weight and preponderance standard. 715 S.W.2d at 634. This difference between findings and non-findings had previously been described as “a distinction which exists in semantics and theory only but which does not exist in reality.” Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex.1985) (Robertson, J., concurring). If there is any inference in Pool that there is a distinction between review of findings and review of non-findings, we lay that question to rest.

In the fifty years of case law preceding the adoption of the 1891 constitutional amendments, this court never once indicated that it lacked the authority to review a jury’s “non-finding.” However, this issue could only rarely arise in those days, since so-called “non-findings” are merely the byproducts of the system of special issue submission. When cases were submitted upon general charges, as was largely the practice in the nineteenth century, the jury was called upon to make one of only two possible “findings”: it either “found” for the plaintiff or “found” for the defendant. Yet, prior to 1891, when we reviewed and set aside a general verdict because the jury failed to find a particular fact, we necessarily reviewed its “non-finding” since a general verdict for either plaintiff or defendant impliedly resolved every contested issue in favor of the verdict winner. Hardy v. DeLeon, 5 Tex. 211 (1849); Hamilton v. Rice, 15 Tex. 282 (1855). It is perfectly clear that regardless of which party had the burden of proof at trial, and regardless of which party prevailed before the jury, the verdict loser had the right to assert on appeal that the jury’s verdict was either not supported by the evidence or was against the great weight and preponderance of the evidence, as appropriate.

The Somers case demonstrates this principle. There, the plaintiff had sued his employer for an injury he received, and we had earlier set aside a jury verdict in his favor and remanded for new trial. See 14 S.W. 741 (Tex.1888). On retrial, the principal dispute was whether the plaintiff had assumed the risk of injury, and the jury refused to find that he had assumed the risk. We set aside that verdict, which was based upon the jury’s “non-finding” of assumption of risk, because it was “against such a preponderance of the evidence” that it was “clearly wrong.” 14 S.W. at 779.

Another illustrative case is Dimmitt v. Robbins, 12 S.W. 94 (Tex.1889). In that case, Robbins brought suit against Dim-mitt, after his failure to pay an alleged loan. Dimmitt generally denied the indebtedness, and also alleged that any promise he had made to Robbins was vitiated by duress or fraud. It is clear that Dimmitt had the burden of proof at trial on these latter allegations. The jury returned a verdict for Robbins, rejecting Dimmit’s contentions of duress and fraud. Upon reviewing the evidence, the court set aside the jury’s verdict in favor of Robbins and remanded for new trial, observing that the jury’s failure to find fraud and duress was “manifestly against the great weight of the testimony.”. 12 S.W. at 99.

In Houston & T.C. Ry. Co. v. Schmidt, 61 Tex. 282 (1884), the court confronted a situation where, as in the instant case, the jury had failed to find contributory negligence on the part of the plaintiff. The defendant argued on appeal that either the evidence showed that Schmidt was not injured in the manner he had alleged, or that the injury he received was the result of his own contributory negligence. 61 Tex. at 285. The court sustained both of these contentions, holding that the verdict was “contrary to the evidence” and “against the great preponderance of evidence.” Id. at 286.

The advent of issue submission and the decline of the general charge had no effect whatsoever upon the courts of appeals’ authority to review a jury’s non-findings. Our adoption of issue submission through the rules has not been and should not be construed to have limited the authority of the courts of appeals to review jury-tried cases. TEX.R.CIV.P. 816. In Parrish v. Hunt, 331 S.W.2d 304 (Tex.1960), we unanimously held that Article V, § 6 of the Texas Constitution required the appellate court to properly pass upon contentions that a jury’s non-findings were against the great weight and preponderance of the evidence. Id. at 305-6. In Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973), we reaffirmed our holding in Parrish, and reversed and remanded to the court of appeals so that it could properly pass upon the plaintiff’s contention that the jury’s non-findings were against the great weight and preponderance of the evidence. Id. at 948.

More recently, we reaffirmed the existence of such authority in the courts of appeals in Pool v. Ford Motor Co., 715 S.W.2d at 634. In that case, as here, the jury had refused to find that the plaintiff was contributorily negligent, and the court of appeals held that this “failure to find” was against the great weight and preponderance of the evidence. Despite language in the opinion of the court indicating some discomfort with the holding, we recognized that the court of appeals had such authority to remand the case for new trial.

In sum, we have held that regardless of the manner in which the case was submitted to the jury, the court of appeals’ jurisdiction extends to all fact questions in the case, whether the jury has expressly or impliedly answered “yes” or “no” to a particular question. Given our recent tendency to favor broad issue submission, a contrary rule would be simply unworkable. Under the current practice of issue submission, defensive issues may be submitted by instruction or be otherwise combined with non-defensive issues, provided that the burden of proof is properly placed. Lemos v. Montez, 680 S.W.2d 798, 800 (Tex.1984). If we countenanced this distinction between “findings” and “non-findings,” we would greatly complicate the process of appellate review, since it would frequently be impossible for a court of appeals to determine whether a jury’s response to such a broad issue was motivated by its reviewable “finding” or its nonreviewable “non-finding” of one or more of the sub-issues. We decline to depart from our previous holdings, or to visit such dilemmas upon the courts of appeals. We hold that the court of appeals may reverse and remand a case for a new trial when it concludes that the jury’s “failure to find” is against the great weight and preponderance of the evidence.

III.

The right of trial by jury and appellate review of a jury’s non-finding.

It is well established that an appellate court cannot merely substitute its judgment for that of a jury, because the court cannot exercise its constitutional authority to the detriment of the right of trial by jury, which is of equal constitutional stature. It has been suggested that when a court of appeals engages in determining whether a jury’s “non-finding” is against the great weight and preponderance of the evidence, it must necessarily substitute its thought process, if not its “judgment,” for that of the jury. Pool, 715 S.W.2d at 634. Yet, in that same opinion, we upheld the authority of the court of appeals to review such a “non-finding.” Id.

Today, we reaffirm the holding of Pool. The limitations we have imposed upon the courts of appeals are more than adequate to assure that the right of trial by jury shall remain “inviolate.” TEX. CONST, art. I, § 15. The historical safeguards of that right are found in the deferential standards of review applied, see e.g., Houston & T.C. Ry. Co. v. Schmidt, 61 Tex. 282 (1884); Willis v. Lewis, 28 Tex. 185 (1866); and the prohibition against rendition of judgment upon a “great weight” or “factual insufficiency” point of error, Choate, 44 S.W. at 69-70. Recently, we have created an additional safeguard by requiring the courts of appeals to set forth in detail the evidence in the case along with its reasons for concluding that the jury’s verdict was contrary to the evidence, if it so concludes. Pool, 715 S.W.2d at 634-5. However, it is clear that when a court of appeals properly reaches a conclusion that a verdict is against the great weight of the evidence, it may return the case for trial before a different jury without violating the right of trial by jury.

The fact that the court of appeals might engage in “thought processes” akin to the jury’s, as noted in Pool, does not establish a violation of the right of trial by jury. Texas & New Orleans Ry. Co. v. Syfan, 44 S.W. 1064 (Tex.1898). Moreover, in light of our rejection of the so called distinction between the review of “findings” and “non-findings,” our decision in Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352 (1951) is dispositive. In response to a contention that the appellate courts’ “factual insufficiency” review of a jury’s finding was unconstitutional, we said:

Review of the jury’s verdict by the Court of Civil Appeals under its jurisdiction over the facts, with reversal for want of sufficient evidence, does not amount to denial of the right to trial by jury. The Court of Civil Appeals does not and cannot substitute fact findings of its own for the findings of the jury, but in exercising its jurisdiction over the facts the Court of Civil Appeals may reverse the trial court’s judgment and remand the case for another trial when it finds that the verdict is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. The power thus exercised is the same as that exercised by the trial court when it sets aside the jury’s verdict on account of insufficient evidence and awards a new trial. And this practice is not a denial of the right of trial by jury. Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 409-410, 44 S.W. 69.

Id., 237 S.W.2d at 358; accord Schaff v. Verble, 240 S.W. 597, 602 (Tex.Civ.App.—San Antonio, 1922) aff'd 251 S.W. 1023 (Tex.Comm’n App.1923, judgmt adopted).

We long ago recognized that an occasional “corrupt, biased or silly verdict is not enough for condemnation” of the jury system. Bailey, Dallam at 380. No one would argue that the constitutional right of trial by jury should or could be abrogated by this court, merely because the court reached the conclusion that too many juries were reaching clearly wrong decisions. It is no different to suggest that we should or could restrict or abolish the courts of appeals’ constitutional authority to review fact questions, merely because there are occasional opinions that reflect too little deference to the judgment of the jury. See Pool, 715 S.W.2d at 635 (discussing such “occasional” opinions). The right of trial by jury and appellate court review of fact questions have peacefully co-existed for almost one hundred and fifty years, and are thoroughly rooted in our constitution and judicial system. Aside from the inescapable fact that this court cannot amend the constitution, we are not prepared to sacrifice either for the benefit of the other.

IV.

Proper exercise of appellate court review.

The court below clearly sustained Caterpillar’s contentions that the jury’s failure to find contributory negligence was against the great weight and preponderance of the evidence. 720 S.W.2d at 826-7. However, it is suggested that there is language in the opinion of the court of appeals indicating that it improperly found Cropper was contributorily negligent and thereby effectively foreclosed the jury’s consideration of that issue on remand. The language of the opinion indicating this purported “finding” is as follows:

A jury will have to determine, of course, the degree to which this conduct on Cropper’s part contributed to cause the accident. Such a determination has not been made because that issue was contingent upon the jury’s affirmative answer to the contributory negligence issue.

720 S.W.2d at 827. Cropper argues that this language establishes that the court of appeals either conclusively determined the fact of Cropper’s contributory negligence, or held that Cropper was contributorily negligent as a matter of law.

We do not agree with Cropper’s interpretation of the court of appeals’ disposition of the case. Viewing the opinion of the court of appeals as a whole, its language in context, and its judgment that the cause should be remanded for trial, it appears that the holding of that court is that the “non-finding” of the jury is against the great weight and preponderance of the evidence. Tippett v. Brannon, 493 S.W.2d 511 (Tex.1973). To the extent that the above quoted language could be viewed as settling the issue of Cropper’s contributory negligence, we disapprove that language.

Cropper also argues that we should reverse the judgment of the court of appeals and remand to that court, because it failed to comply with the dictates of Pool v. Ford Motor Company. In Pool, we held that a court of appeals should “detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding ... is so against the great weight and preponderance as to be manifestly unjust.” 715 S.W.2d at 629. Further, we stated that the court of appeals’ opinion “should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.” Id.

In his motion for rehearing, Cropper brought to the attention of the court of appeals certain testimony and evidence that was not referred to by the court in its opinion and which somewhat contradicted the version of the facts recited by the court in its opinion. Cf. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Further, the evidence specifically referred to in Cropper’s motion lent substantial support to the jury’s verdict. Cropper has thus preserved his complaint that the court of appeals’ opinion does not comply with the guidelines established by this court in Pool v. Ford Motor Company. We sustain this point of error.

The judgment of the court of appeals is reversed and the cause is remanded to that court for further consideration in light of this opinion.

ROBERTSON, J., dissents in an opinion joined by RAY and MAUZY, JJ.