MacEdonia Baptist Church v. Gibson

833 S.W.2d 557, 1992 Tex. App. LEXIS 1247, 1992 WL 103431
CourtCourt of Appeals of Texas
DecidedMay 19, 1992
Docket6-91-104-CV
StatusPublished
Cited by19 cases

This text of 833 S.W.2d 557 (MacEdonia Baptist Church v. Gibson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacEdonia Baptist Church v. Gibson, 833 S.W.2d 557, 1992 Tex. App. LEXIS 1247, 1992 WL 103431 (Tex. Ct. App. 1992).

Opinions

OPINION

BLEIL, Justice.

Macedonia Baptist Church appeals the judgment entered against it granting recovery to Nora Gibson, who was injured by a side flash from lightning while leaving worship services, and her husband, Milton Gibson. We first determine whether the Gibsons have standing to sue Macedonia and, if so, whether the evidence was sufficient to support the jury’s answers, whether the testimony of an undesignated witness should have been allowed, whether the Gibsons’ attorney improperly argued to [559]*559the jury, and whether a new trial should have been granted based upon newly discovered evidence. We find no reversible error and affirm.

Macedonia began building a new church in 1984. In connection with that, it ordered a steeple with a lightning rod and cable. The contractor installed the steeple itself, but was relieved of the job after that. The cable and lightning rod installation were performed by members of the church, who deviated from the instructions in several particulars.

On August 21, 1988, Nora Gibson, a member of the church, left services in the midst of a lightning storm. Lightning hit the lightning rod and traveled down its grounding cables. Gibson was in the vicinity of one of these cables when the lightning struck, and a side flash from the cable injured her.

Macedonia is incorporated under the Texas Non-Profit Corporation Act.1 However, Macedonia claims that, because it is a nonprofit membership corporation, it has the defenses that are afforded to unincorporated associations from suits by members. We disagree. Except as concerns members’ rights on termination of their membership and individual members’ rights to a share of the corporation’s property, Raulston v. Everett, 561 S.W.2d 635, 638 (Tex.Civ.App.—Texarkana 1978, no writ), membership corporations are the same as other corporations. A corporation is a separate legal entity, distinct and apart from its members or stockholders, and an individual stockholder or member may maintain any rights of action against the company, of whatever nature, in the same manner as those who are not members. Henderson v. Railroad Co., 17 Tex. 560, 572 (1856); 19 Am.JuR.2d Corporations § 2245 (1986). The Gibsons have standing to sue the church, even though they are members of the church. We now consider whether there is sufficient evidence to support the verdict.

In reviewing a no evidence point of error, we consider only the evidence which supports the jury’s verdict. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex.1988); International Bank, N.A. v. Morales, 736 S.W.2d 622, 624 (Tex.1987). When a factual sufficiency challenge is reviewed, all of the evidence is considered, including evidence contrary to the verdict. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). In our review of a jury’s finding or its failure to find, we may not merely substitute our judgment for that of the jury. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988).

Macedonia challenges the jury’s finding of proximate cause. Proximate cause includes two essential elements, foreseeability and cause in fact, or causal relation. Texas & Pacific Ry. Co. v. McCleery, 418 S.W.2d 494, 496 (Tex.1967); Truco Properties, Inc. v. Charlton, 749 S.W.2d 893, 895 (Tex.App.—Texarkana 1988, writ denied). For a result to be legally foreseeable, all that is required is that the injury be of such a general character as might be reasonably anticipated and that the injured party should be so situated with relation to the wrongful act that the injury to him or to one similarly situated might reasonably have been foreseen. Motsenbocker v. Wyatt, 369 S.W.2d 319, 323 (Tex.1963).

The church membership knew that lightning had struck the church’s steeple in the past and that it posed a danger to both the church and the people inside. Macedonia took responsibility for the installation of the lightning protection system, deviated from the system’s installation plan and failed to follow its architect’s recommendations. The system was designed to channel electricity from the top of the steeple to the ground via four ground wires not placed near the walkway. Therefore, since the two ground wires used were placed next to a walkway, it is foreseeable that an individual would be injured while on the walkway when lightning struck the protection system. Experts testified that side flashes occur. The church knew or should have known that, once the lightning protection [560]*560system was in place, a side flash could occur. There is factually sufficient evidence to support a finding that Macedonia, once it determined to install and make design changes to the system, was negligent and that its negligence caused Gibson’s injuries.

To be injured by a side flash, Gibson would have to have been within five feet of the ground wire. Two witnesses testified that Gibson was sixteen to twenty feet away from the wire after the injury. However, Gibson testified that she was within five feet of the wire when struck, and her shoes and Bible were found within five feet of the ground wire. An expert indicated that the protection system was unreasonably dangerous and was the most probable cause of Gibson’s injury. The same expert testified that he had never known of a side flash occurring on a properly installed lightning protection system. A second expert testified that the Macedonia system was inadequately installed and, because of the inadequate installation, the lightning strike overloaded the cable, causing Gibson’s injuries. Although Gibson did not have electrical burns, her physical problems were consistent with an electrically-induced injury. A physician testified that, in all reasonable medical probability, Gibson’s injuries were caused by lightning. Factually sufficient evidence supports the jury’s finding that the church’s negligence in installing the lightning protection system was the proximate cause of Gibson’s injuries.

The church claims that it is not responsible because Gibson’s injuries were the result of an act of God. An accident is the result of an act of God when it is due directly and exclusively to natural causes, without human intervention. Scott v. Atchison, Topeka and Santa Fe Ry. Co., 572 S.W.2d 273, 279 (Tex.1978). Here, the injury was caused by harnessing electric power and channeling it to the ground through the use of an improperly installed lightning protection system, causing a side flash to occur. Gibson’s injuries were not caused by an act of God.

Shirley Stark, a member of Macedonia’s congregation, was not allowed to testify at trial because she was not designated as a person with knowledge of relevant facts.

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MacEdonia Baptist Church v. Gibson
833 S.W.2d 557 (Court of Appeals of Texas, 1992)

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Bluebook (online)
833 S.W.2d 557, 1992 Tex. App. LEXIS 1247, 1992 WL 103431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macedonia-baptist-church-v-gibson-texapp-1992.