Court of Appeals of Texas,
Eastland.
TYSON WOOD PRODUCTS, INC., Appellant
v.
Teresa ALVAREZ, Appellee.
No. 11–94–083–CV.
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May 18, 1995.
Attorneys & Firms
V. Elizabeth Kellow, for Tyson Wood Products, Inc.
John L. Lesly, for Teresa Alvarez.
OPINION
BOB DICKENSON, Justice.*
*1 Plaintiff, Teresa Alvarez, sued her employer, Tyson Wood Products, Inc., defendant, for personal injuries which she received while working at her job on March 19, 1991. Defendant did not carry workers’ compensation insurance; consequently, plaintiff’s claim is not barred by the defenses of contributory negligence or assumption of risk.1 Following a nonjury trial, the district judge signed a judgment that plaintiff recover $35,000 for past and future pain, suffering, and disfigurement.2 Defendant appeals. We affirm.
Findings of Fact
The trial court made findings of fact pursuant to TEX.R.CIV.P. 296 which include the following:
4. On or about March 19, 1991, the Plaintiff sustained an injury to her right hand while in the course and scope of her employment with the Defendant.
6. Plaintiff’s injury was proximately caused by the negligence of the Defendant acting individually, or by and through its agents, servants, or employees, in failing to provide Plaintiff with machinery that could be turned off in an emergency.
7. Plaintiff’s injury was proximately caused by the negligence of the Defendant acting individually, or by and through its agents, servants, or employees, in failing to properly train Plaintiff in the operation of the machine upon which she was injured.
8. Plaintiff’s injury was proximately caused by the negligence of the Defendant acting individually, or by and through its agents, servants, or employees, in failing to put a warning sign on the equipment operated by Plaintiff when she sustained her injury.
9. Plaintiff’s injury was proximately caused by the negligence of the Defendant, acting individually, or by and through its agents, servants, or employees, in failing to properly train the Plaintiff in procedures to undertake when the equipment she was operating jammed.
10. Plaintiff’s injury was proximately caused by the negligence of the Defendant acting individually, or by and through its agents, servants, or employees, in failing to make readily accessible to the Plaintiff the safety procedures manual.
11. As a result of the negligence of the Defendant, acting individually, or by and through its agents, servants, or employees, Plaintiff sustained damages for past and future physical pain and mental anguish, and for past and future physical disfigurement in the amount of $35,000.00. (Emphasis added)
Points of Error
Defendant’s brief contains two points of error. They read in full as shown:
1. The trial court erred when it entered its findings of fact and conclusions of law because there was no evidence or, alternatively, insufficient evidence to support the findings and conclusions regarding negligence on the part of Appellant.
2. The trial court erred when it entered its findings of fact and conclusions of law because there was no evidence or, alternatively, insufficient evidence to support the findings and conclusions regarding the damages awarded for pain and suffering.
*2 Both points of error have been considered, and each is overruled. First, we hold that there is evidence which is “legally sufficient” to support the trial court’s findings, conclusions, and judgment under the test stated in Commercial Union Assurance Company v. Foster, 379 S.W.2d 320 at 322 (Tex.1964):
It is an elemental proposition of law that where there is some evidence of a substantial and probative character to support the trial court’s findings of fact, they are controlling upon [an appellate] court and will not be disturbed.
Next, we hold that the evidence is “factually sufficient” under the test stated by In re King’s Estate, 244 S.W.2d 660 (Tex.1951). See also 4 McDONALD, TEXAS CIVIL PRACTICE § 20:5(b) (rev.1992).
Evidence Supporting Negligence Findings
The first witness was plaintiff, Teresa Alvarez. She testified through an interpreter that she was employed by Tyson Wood Products on March 19, 1991. She testified that she had worked for Tyson for about five or six years and that she was working on a machine which sands wood when she was injured. Portions of her testimony on direct examination read as shown:
Q: Would you explain to the Court what you had to do to work with that machine?
A: I would have to pass pieces of wood through the machine. And there would be a belt that would take them into the middle [of the machine] after they were sanded.
* * *
Q: Okay. Did you injure your hand that day?
A: Yes.
Q: Would you tell the Court how that happened?
A: When I went over to the pallet and I put the wood on the machine, the wood got jammed…. I had to take out the wood so that the machine could continue to run.
Usually, when the machine becomes jammed it usually discontinues working, but that day it continued working …. it caught my finger and then that’s when it cut it off.
Q: What caught your finger?
A: The wood and the belt.
* * *
Q: Okay. On March 19th, 1991, when your right hand was caught between the belt and the wood, were you able to reach that button [which turns the machine off], or could you have?
A: No.
Q: Okay. Was the supervisor or any other employee near enough to you so that you could receive assistance in cutting off the machine?
A: No.
* * *
Q: Teresa, before you reached in to pull out the stuck wood, why didn’t you shut off the machine?
THE INTERPRETER: She says because her supervisor told her not to turn off the machine, because the—the sander would get stuck.
Q: So, was it your understanding that you were under orders not to turn off the machine until the end of the day?
THE INTERPRETER: She says no, until—until he comes to turn off the machine to—you know, dislodge whatever is there.
Q: Okay. So, were you to turn off the machine if there were wooden parts in it?
A: No.
*3 Q: And who had told you that?
A: My boss.
Q: Okay. When your hand was caught under the wood board in the machine, could you reach the off/on switch with your other hand?
A: No.
After the plaintiff testified, defendant called three witnesses. The first was Marshall C. Tyson, Vice–President and General Manager of Tyson Wood Products, Inc. The second was William Burden, plaintiff’s supervisor. The final witness was Maria Marcus, plaintiff’s co-worker.
Tyson described defendant’s business: cabinet manufacturing, millwork, and hardwood flooring. They currently have about 60 employees. He said that plaintiff was a good employee and that she was well-trained. He described the machine upon which she was working at the time of her injury; it was a machine with a conveyor belt that carries wood through a closed housing containing a large piece of sandpaper (36 inches wide and 103 inches long) which is on a drum which rotates at 1,750 revolutions per minute. Tyson said that plaintiff was trained before she was permitted to operate this power machinery. He also said that it was against company policy to wear gloves when operating the machine because a glove could get caught and pull a hand into the machine. He said that he had seen plaintiff wearing gloves on other occasions and that he had reprimanded her. Tyson also said that plaintiff was paid for her lost wages until the doctor released her. On cross-examination, Tyson confirmed that his company was not a “subscriber” under the Workers’ Compensation Act.
Burden testified that he was plaintiff’s supervisor. He said that she was a good employee and that he never had to reprimand her. Burden agreed on cross-examination that there should have been a warning sign on the machine where plaintiff was injured. There was a warning sign on the newer machine. On re-direct examination, Burden said that he never told plaintiff not to turn the machine off if it jammed.
Marcus testified that she worked with plaintiff and that they were friends. Marcus had worked for defendant for 13 years. She said that, if wood jammed in the machine, they were supposed to call Burden, their supervisor. She said that plaintiff knew how to turn the machine off and that they had never been told that they were not to turn the machine off. On cross-examination, she said that the warning sign on the other grinding machine was written in English and that plaintiff spoke Spanish.
This evidence is sufficient to support the trial court’s Findings of Fact Nos. 6 and 8. Commercial Union Assurance Company v. Foster, supra. The other findings become immaterial and need not be discussed. We also hold that Findings of Fact Nos. 6 and 8 are not “so against the great weight and preponderance of the evidence as to be manifestly unjust.” In re King’s Estate, supra.
Evidence Supporting Damage Findings
The statement of facts shows that five medical record affidavits were marked and offered into evidence to show “the type, extent and duration of the injuries sustained by Ms. Alvarez.” Defendant objected that plaintiff failed to supplement her answers to interrogatories, and the trial court ruled that those exhibits were admitted “to show the nature and extent of injury, and not an amount.” Those records were admitted into evidence, but they are not attached to the statement of facts furnished to this court. We must presume that those exhibits contain evidence which supports the trial court’s judgment.3 See TEX.R.APP.P. 50(d).
*4 Plaintiff’s testimony shows that the end of the ring finger on her right hand was cut off by the machine when her hand was caught and pulled into the machine. She testified that: “I just felt my hand real hot at first … then later I felt all the pain.” Her supervisor took her to the hospital. The lawyers stipulated that the past medical expenses came to approximately $11,000. After the operation on her hand, she had therapy. She also testified on direct examination that:
Q: Has the injury to your hand bothered you?
A: Yes.
Q: How has it bothered you?
A: Many different ways. It’s—it’s affected me physically, and also emotionally.
* * *
Q: Okay. Are you able to use your hand like you were before the accident?
A: No.
Q: How has it changed?
A: I’m unable to do things I was able to do before, because my finger is bent…. I don’t have full use of my right hand.
* * *
Q: Okay. Now, you also said to the Court that it bothers you mentally. Could you explain to the Court some of the ways it bothers you that way?
A: There’s been occasions where people have laughed at me.
Q: What—what do you feel when that happens?
A: I feel humiliation.
Q: Okay. What other things have happened?
A: For example, like when I go to a store I’m embarrassed to show my hand.
This evidence is sufficient to support the trial court’s Finding of Fact No. 11. Commercial Union Assurance Company v. Foster, supra. We also hold that Finding of Fact No. 11 is not “so against the great weight and preponderance of the evidence as to be manifestly unjust.” In re King’s Estate, supra.
This Court’s Ruling
The judgment of the trial court is affirmed.
WRIGHT, Justice, not participating.
Footnotes |
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* |
McCloud, Chief Justice, Retired, Court of Appeals, Eastland, sitting by assignment pursuant to TEX. GOV’T CODE ANN. § 74.003(b) (Vernon 1988). |
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1 |
See TEX. LABOR CODE ANN. § 406.033 (Vernon Pamph.1995). |
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2 |
The employer had already paid all of the past medical expenses and lost wages. Plaintiff has gone to work at another job, and she makes no claim for lost wages or lost earning capacity. |
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3 |
Plaintiff’s Exhibit No. 1 is the affidavit from the office manager for Dr. Hugh Frederick. Plaintiff’s Exhibit No. 2 is the affidavit from Tri–City Hospital. Plaintiff’s Exhibit No. 3 is the affidavit from the records custodian for Dr. Robert Shocoe. Plaintiff’s Exhibit No. 4 is the affidavit from Summit Health Institute. Plaintiff’s Exhibit No. 5 is the affidavit from Tri–City Health Center. |
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