Srite v. Owens-Illinois, Inc.

870 S.W.2d 556
CourtCourt of Appeals of Texas
DecidedJanuary 6, 1994
Docket01-91-01383-CV to 01-91-01387-CV and 01-92-00285-CV to 01-92-00288-CV
StatusPublished
Cited by41 cases

This text of 870 S.W.2d 556 (Srite v. Owens-Illinois, Inc.) 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
Srite v. Owens-Illinois, Inc., 870 S.W.2d 556 (Tex. Ct. App. 1994).

Opinions

OPINION

HEDGES, Justice.

In this case, we are asked to decide the proper standard of appellate review when a jury finds liability yet awards no damages. We further must determine the proper measure of prejudgment interest under Cavnar v. Quality Control Parking, 696 S.W.2d 549 (Tex.1985), in the instance of a latent disease whose manifestation potentially occurs many years after the injury. From nine separate asbestos cases that were grouped for trial, appeal was taken by plaintiffs as follows: six workers and their wives, Clyde Spikes and Ruby Spikes, Robert Bledsoe and Ellois Bledsoe, Clarence Ben and Ednora Ben, Raymond Jochim and Mary Jochim, James Morris and Helen Morris, and James Bell and Mickey Bell; one worker whose wife died before trial, James Srite; and the estates and families of two workers, Otis Burt and Joseph Friley. Defendants are Owens-Illinois, Inc.; Fibreboard Corporation; and Pittsburgh-Corning Corporation. Additionally, Keene Corporation is an appellee in the Friley, Morris, Jochim, Ben, Bledsoe, and Spikes cases.

Trial was to a jury, which considered strict liability and negligence theories of recovery. The jury was asked to assess the past and future damages of the workers for physical pain, mental anguish, loss of earning capacity, physical impairment, and future medical care. It was also asked to assess the past and future damages of the wives for loss of household services and loss of consortium. The jury found:

[558]*5581)all defendants were liable for negligence that proximately caused injury to the living workers and the death of the deceased workers.
2) each worker was contributorily negligent.
3) all defendants were strictly liable, except in the death of Joseph Friley.
4) defendants were not Hable for gross negligence.

The jury also determined the percentage of injury caused by each asbestos company and each worker. It assessed from three percent to five percent of the fault to each worker, and the remaining 95 percent to 97 percent to the asbestos companies.

The jury awarded damages as follows:
James Bell Past: $0 Future: $30,000
Mickey Bell Past: $0 Future: $ 5,000
Clarence Ben Past: $0 Future: $40,000
Ednora Ben Past: $0 Future: $ 5,000
Robert Bledsoe Past: $0 Future: $65,000
Ellois Bledsoe Past: $0 Future: $0
Raymond Jochim Past: $0 Future: $45,000
Mary Jochim Past: $0 Future: $10,000
James Moras Past: $0 Future: $30,000
Helen Moms Past: $0 Future: $ 5,000
Clyde Spikes Past: $20,000 Future: $25,000
Ruby Spikes Past: $0 Future: $10,000
James Srite Past: $20,000 Future: $25,000
Otis Burt Past: $25,000
Mable Burt Past: $20,000
Joseph Friley Past: $20,000
Erma Friley Past: $10,000

The jury also awarded wrongful death damages to the Burt and Friley famihes. It found facts that led the trial court to impose a limitations bar on recovery by the Spikes family. Judgments were rendered on the verdicts after damages were reduced by comparative causation findings and settlement credits.

Points on Appeal

Plaintiffs appeal the judgments on the basis that the jury verdicts are inherently inconsistent. They argue that under Texas law and based on the trial record, a jury cannot find HabiHty and future damages but award no past damages. They complain that the limitations finding in the Spikes cause is deficient because defendants did not meet their evidentiary burden. They claim that the trial court erred by aUowing two expert witnesses to testify despite the incomplete description of their testimony in discovery responses. FinaUy, they maintain that the trial court picked an incorrect starting date for prejudgment interest.

Past Damages

In point of error one, plaintiffs argue that the jury’s failure to award past damages to James Bell, Mickey Bell, Clarence Ben, Ed-nora Ben, Robert Bledsoe, Ellois Bledsoe, Raymond Jochim, Mary Jochim, James Morris, Helen Morris, and Ruby Spikes is against the great weight and preponderance of the evidence. In point of error two, plaintiffs maintain that they conclusively estab-Hshed their entitlement to past damages. In point of error three, they contend that the jury reversibly erred by failing to award damages for every element of damages they proved.

Under these first three points of error, plaintiffs direct our attention to the “zero damages rule,” which they assert requires us to reverse and remand for a new trial. The zero damages rule stands for the proposition that if a jury finds HabiHty, it must award damages if there is any objective evidence of damages. Hammond v. Estate, 643 S.W.2d 222, 223 (Tex.App.—Eastland 1981, writ ref'd n.r.e.); Kraatz v. Faubion, 617 S.W.2d 277, 279 (Tex.Civ.App.—Eastland 1981, no writ); Dupree v. Blackmon, 481 S.W.2d 216, 221 (Tex.Civ.App.—Beaumont 1972, writ ref'd n.r.e.).

We are unpersuaded by plaintiffs’ argument. The zero damages rule conflicts with the standard of review articulated by the Texas Supreme Court in the case of Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). Under the Pool standard, an appellate court first must review the entire record to determine if any evidence supports the jury’s award of zero damages. If some evidence is found in support of the jury’s failure to award damages, then the court must weigh all the evidence. Reversal is authorized only if the court expressly determines that the finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 635; see generally R. Gonzales & R. Gilbreath, Appellate Review of a Jury’s Finding of “Zero Damages, ” 54 Tex.Bar J. 418, 419 (May 1991) (proper analysis for re[559]*559viewing court is to weigh all the evidence, in order to determine whether the jury’s finding is so contrary to the evidence as to be manifestly unjust). This Court has concluded that if a plaintiff has objective symptoms of injury, the plaintiffs evidence cannot be disregarded by the jury. Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.App.—Houston [1st Dist.] 1992, no writ). If, however, the plaintiffs complaints are subjective in nature and therefore incapable of direct proof, the jury may award zero damages. Hyler v. Boytor, 823 S.W.2d 425, 427-28 (Tex.App.—Houston [1st Dist.] 1992, no writ) (citing Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex.App.—Dallas 1988, no writ)).

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Bluebook (online)
870 S.W.2d 556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/srite-v-owens-illinois-inc-texapp-1994.