Wright v. GIFFORD-HILL & CO. INC.

736 S.W.2d 828, 1987 Tex. App. LEXIS 8112
CourtCourt of Appeals of Texas
DecidedJuly 30, 1987
Docket10-85-025-CV
StatusPublished
Cited by22 cases

This text of 736 S.W.2d 828 (Wright v. GIFFORD-HILL & CO. 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
Wright v. GIFFORD-HILL & CO. INC., 736 S.W.2d 828, 1987 Tex. App. LEXIS 8112 (Tex. Ct. App. 1987).

Opinion

736 S.W.2d 828 (1987)

Reva U. WRIGHT, Appellant,
v.
GIFFORD-HILL & CO., INC. et al., Appellees.

No. 10-85-025-CV.

Court of Appeals of Texas, Waco.

July 30, 1987.
Rehearing Denied August 20, 1987.

*830 Michael A. Robertson, Robertson, Boyle, Golden & Arnold, P.C., Grand Prairie, and Tony D. Crabtree, Dallas, for appellant.

R. Brent Cooper, Michael W. Huddleston and John M. Weaver, Cowles & Thompson, Dallas, for appellees.

OPINION

THOMAS, Justice.

This is a suit for exemplary damages under the Texas Worker's Compensation Act. See Tex.Rev.Civ.Stat.Ann. art. 8306, § 5 (Vernon 1967). Reva Wright, the surviving spouse of Charles Wright, obtained favorable jury findings of gross negligence, proximate cause and exemplary damages of $450,000 against Gifford-Hill & Co., Inc., her husband's employer. The jury also answered the comparative-negligence issue by apportioning her husband's ordinary negligence at thirty-five percent and Gifford-Hill's gross negligence at sixty-five percent. The court ignored the findings on the liability issues and, notwithstanding *831 the jury's verdict, entered a take-nothing judgment in Gifford-Hill's favor. This court originally affirmed the judgment because Wright had not obtained a finding on the existence and amount of her actual damages. See Wright v. Gifford-Hill & Co., Inc., 705 S.W.2d 868 (Tex.App.—Waco 1986, writ granted). The affirmance was based on Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 409 (1934), in which the Texas Supreme Court expressly held that a plaintiff must obtain a finding on actual damages to recover exemplary damages under the Worker's Compensation Act. However, the Supreme Court reversed the affirmance and disapproved its prior holding in Fort Worth Elevators Co. which required a finding of actual damages. See Wright v. Gifford-Hill & Co., Inc., 725 S.W.2d 712, 714 (Tex.1987). The cause was remanded to this court for consideration of those points that had not been reached because of the holding on exemplary damages.

Charles Wright, a maintenance man at a concrete pipe plant operated by Gifford-Hill Pipe Company, was killed on September 8, 1979. Reva Wright originally filed suit against Gifford-Hill American, Inc. on March 12, 1981, which was within two years after her husband's death. However, she did not join Gifford-Hill Pipe Company and Gifford-Hill & Co., Inc. as defendants until February 1, 1982, more than two years after the accident. The court granted a summary judgment in favor of Gifford-Hill American, Inc. prior to trial and, based on the jury's verdict, also entered a take-nothing judgment in favor of Gifford-Hill Pipe Company because the charge had not contained any issues relating to its liability. Wright does not complain on appeal about either of these judgments, but limits her points to the take-nothing judgment in favor of Gifford-Hill & Co., Inc. which the court entered notwithstanding the verdict. The court concluded in its judgment that Gifford-Hill & Co., Inc. was entitled to a judgment because the findings of gross negligence and proximate cause were not supported by any evidence.

Wright's first point is that the court could not enter a judgment notwithstanding the verdict because the findings of gross negligence and proximate cause were supported by some evidence. Gross negligence is that "want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it." Williams v. Steves Industries, Inc., 699 S.W.2d 570, 572 (Tex.1985) (quoting from Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex.1981)). The emphasis in this definition is on "conscious indifference" because the defendant's mental attitude is what elevates ordinary negligence to gross negligence. Burk Royalty Co., 616 S.W.2d at 922. Therefore, the plaintiff must prove that the defendant was knowingly indifferent to his welfare, that he knew about the peril but just did not care. Id. The defendant's mental state may be inferred from his acts or omissions and may be proved by either direct or circumstantial evidence. Williams, 699 S.W.2d at 573. The plaintiff may prove the defendant had actual subjective knowledge that his conduct created an extreme degree of risk or that a reasonable person would have realized under the surrounding circumstances that his conduct created an extreme degree of risk. Id.

The standard for reviewing a gross-negligence finding under the Worker's Compensation Act is the same as in any other case. Burk Royalty Co., 616 S.W.2d at 920. The question on appeal is whether, from all of the surrounding facts, circumstances and conditions, there is "some evidence" of gross negligence. Id. at 922. The court must apply this traditional test of "no evidence" by considering only the evidence and inferences which tend to support the finding in the light most favorable to the verdict, while disregarding all evidence and inferences to the contrary. Id.

Wright, who had been employed by Gifford-Hill & Co., Inc. only two and one-half months before his death, accompanied Simon Forbes to repair one of the "idler wheels" on Mixer No. 5, one of five large *832 mixers which mixed concrete used in the manufacture of concrete pipe. Each mixer had two idler wheels which stabilized the mixer "tub" as it rotated while mixing the concrete. Two automated trolleys, each equipped with a warning horn that sounded whenever the trolley moved, were situated on rails above the five mixers and used to transport raw materials to the mixers. Forbes and Wright climbed the steps to the elevated "catwalk" that surrounded Mixer No. 5, and Forbes walked along the catwalk to the defective idler wheel located on the "backside" of the mixer. Forbes was examining the idler wheel when he noticed that Wright had not followed him along the catwalk but had stopped on the opposite side of the mixer. Forbes did not know why Wright had stopped there, and he could only see the lower portion of Wright's body from where he stood at the backside of the mixer. Wright was apparently standing above the catwalk on the idler wheel located at the front of the mixer. Mixer No. 5 had been stopped and its tub already cleaned by a cleaning crew before Wright and Forbes arrived to repair the idler wheel.

Forbes heard the warning horn of a trolley as it proceeded from its "resting place" to a "pickup station" where it picked up raw materials to be delivered to Mixer No. 3, the only other mixer operating at that time. He recognized that Wright, who was standing on the idler wheel above the catwalk, would be struck by the trolley as it passed over Mixer No. 5 on its way to Mixer No. 3. Forbes tried to warn Wright several times by telling him to "watch the trolley", but Wright did not respond to the warnings and was struck and killed.

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Bluebook (online)
736 S.W.2d 828, 1987 Tex. App. LEXIS 8112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-gifford-hill-co-inc-texapp-1987.