Court of Appeals of Texas,

Houston (1st Dist.).

TREES, INC., Appellant,

V.

PAMELA MAMOU, Individually and on behalf of the ESTATE of JOSEPH CLANCY MAMOU, JR., Decedent, and on behalf of the minor children, KRYSTAL TECHELLE MAMOU and JOSEPH CLANCY MAMOU, Appellees.

No. 01-90-00469-CV.

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January 3, 1991.

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Opinion Withdrawn Feb. 19, 1991, and Appeal Dismissed.

Before HUGHES, O’CONNOR and SMITH¹, JJ.

JACKSON B. SMITH, Jr., Justice (Retired).

OPINION

*1 This is a suit seeking damages for injuries received as a result of alleged gross negligence of an employer. Appellees, heirs of the decedent, filed this suit against appellant, Trees, Inc., the employer, pursuant to the Texas Workers’ Compensation Act, TEX.REV.CIV.STAT. ANN.art.8306 (Vernon Supp. 1991)². Appellant seeks reversal of a final judgment, based on jury findings, awarding appellees $500,000 exemplary damages and $116,164.35 prejudgment interest.

Gulf State Utilities Company retained the services of appellant, Trees, Inc., to perform tree trimming services. The decedent, Joseph Clancy Mamou, Jr., an employee of appellant, was assigned to trim trees pursuant to the terms of the Gulf States contract. While Mamou was performing his duties, a tree branch he was trimming touched a Houston Lighting and Power Company electric line, and he received an electrical shock. Mamou died as a result of the shock he received.

Appellees, the decedent’s wife and children, brought suit against Houston Lighting and Power Company, Gulf States Utilities Company, and Trees, Inc., for wrongful death and gross negligence in connection with the decedent’s death. Pursuant to appellees’ motion, the trial court severed appellees’ cause of action against appellant from the cause of action against the other defendants.

In its first point of error, appellant argues that the trial court erred in awarding prejudgment interest on an award of exemplary damages.

The Texas Workers’ Compensation Act expressly provides for a gross negligence cause of action against an employer.TEX.REV.CIV.STAT.ANN. art.8306, § 5. Although section 5 provides for recovery of exemplary damages, we find nothing in that section or any other section of the Texas Workers’ Compensation Act that addresses the issue of prejudgment interest on a recovery made under the provisions of section 5.

Looking to other statutes, we find that judgments in wrongful death, personal injury, and property damage cases, filed on or after September 1, 1987, must include prejudgment interest. TEX.REV.CIV. STAT.ANN.art.5069-1.05, § 6(a) (Vernon Supp. 1991). However, the question of prejudgment interest on an award of exemplary damages is not addressed in section 6(a). Looking further, we find that the rules governing the recovery of exemplary damages were codified in 1987. TEX.CIV.PRAC. & REM. CODE ANN. § 41.006 (Vernon Supp. 1991). Section 41.006 expressly provides that ‘prejudgment interest may not be assessed or recovered on an award of exemplary damages.‘ However, section 41.006 is not applicable to actions brought under the Texas Workers’ Compensation Act or to an action to recover exemplary damages against an employer by the employee’s beneficiaries in a death action arising out of the course or scope of employment, where the employer is a subscriber under the worker’s compensation laws of this State. See TEX.CIV.PRAC. & REM. CODE ANN. § 41.002(b)(3) and (4) (Vernon Supp. 1991).

*2 The purpose of exemplary damages is to punish, while the purpose of ordinary damages is to make a party whole for damages sustained. W. KEETON, PROSSER AND KEETON ON THE LAW ON TORTS, § 2 (5th ed. 1984). The $500,000 recovery by appellees in the present case was a punitive damage award. Appellees assert that because section 41.006 is not applicable to section 41.002(b)(3) and (4), the import of the law and the intention of the legislature is to allow recovery of prejudgment interest on exemplary damages in workers’ compensation cases. We disagree.

Section 41.002 merely states that the law set forth in section 41.006 does not apply to actions brought under workers’ compensation laws. It appears that the legislature, in excluding the 15 enumerated statutory causes of action set forth in section 41.002, expects the courts to look to the specific stature involved to determine whether prejudgment interest may be awarded on exemplary damages. The Workers’ Compensation Act is silent on the question of prejudgment interest being awarded on exemplary damages. Silence under such circumstances does not mean consent, but means only that the legislature has not seen fit to act on the matter involved and has not expressed its intent for or against the issue. Thus, we look to case law for guidance.

In Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 555 (Tex. 1985), a wrongful death and survival action, both the majority and the dissenting opinions agreed that prejudgment interest is not recoverable on exemplary damages. Likewise, in a deceptive trade practice cause of action, where treble damages are authorized as punitive damages, the Texas Supreme Court held ‘prejudgment interest may not be awarded on punitive damages. ‘ Vail v. Texas Farm Bureau Mut. Ins. Co., 754 S.W.2d 129, 137 (Tex. 1988). Because it occurred after the 1987 codification of the Texas Civil Practice and Remedies Code, Vail is similar to the present case. In addition, it is also similar to the present case in that a deceptive trade practice case, like the present case, is also one of the types of cases excluded under section 41.002. It appears that the Texas Supreme Court has been consistent in holding that prejudgment interest will not be awarded on punitive damages.

Appellant’s first point of error is sustained.

In its second point of error, appellant argues the trial court erred in submitting to the jury a charge which was calculated to and probably did cause rendition of an improper judgment. The thrust of appellant’s complaint is that in a suit for gross negligence, the inclusion of definitions of both ordinary negligence and proximate cause is ‘improper and was calculated to and probably did cause jury confusion and the application by the jury of an inappropriate legal standard to the facts in this case.‘

*3 If a trial court submits a question, definition, or instruction that is erroneous or defective, an objection is required to preserve the right to complain. Tex.R.Civ.P. 274. Objections must be specific, not general. To be specific, an objection must point out distinctly why a portion of a charge is erroneous or deficient. Id. The Texas Supreme Court has stated that the purpose of rule 274 ‘is to afford trial courts an opportunity to correct errors in the charge, by requiring objections both to clearly designate the error and to explain the grounds for complaint …. An objection that does not meet those requirements is properly overruled and does not preserve error on appeal.‘ Castleberry v. Branscum, 721 S.W.2d 270, 270 (Tex. 1987).

The record does not reflect that appellant objected to the inclusion of the definitions of ‘negligence‘ and ‘proximate cause‘ in the trial court’s charge. When asked by the trial court to make its objections to the charge, appellant answered ‘the only objection that I have is what the court already agreed to allow the defendant.‘ Apparently, there had been a previous discussion between the trial court and counsel for both parties concerning the parties’ objections; however, such discussion is not included in the record. Thus, we have nothing in the record to show how or if the court ruled on appellant’s unrecorded objections. Because the objection in the record neither clearly designates the error, nor explains the grounds for complaint, we find no merit in appellant’s second point of error.

Appellant’s second point of error is overruled.

In its third point of error, appellant argues that the trial court erred in submitting a charge to the jury that constituted a comment on the weight of the evidence. Its complaint is that question number one in the court’s charge assumes a controverted fact that appellant was grossly negligent. Question number one asked, ‘Was the death of (decedent) proximately caused by the gross negligence of Trees, Inc.?‘ The problem with appellant’s complaint is that the record does not show that appellant objected during the trial to the question. Objections to the charge must be made before the charge is read to the jury; otherwise, the objections are waived. Tex. R. Civ. P. 272. The purpose of this rule is to give the court an opportunity to correct its charge before it is given to the jury. Missouri Pac. R.R. v. Cross, 501 S.W.2d 868, 873 (Tex. 1973). Because appellant failed to assert its objection in the trial court, and because it is contending for the first time on appeal that question number one is a comment on the weight of the evidence, appellant waived such objection.

*4 Appellant’s third point of error is overruled.

In its fourth point of error, appellant argues that the trial court erred in failing to declare a mistrial when inadmissible, inaccurate, and highly prejudicial evidence was introduced in front of the jury by appellees’ attorney.

Appellant claims the trial court erred in failing to declare a mistrial when appellees asked appellant’s designated corporate representative ‘Do you remember that you were cited by the State of Washington wherein…. ‘ Appellant’s objection prevented appellees from completing their question. The trial court sustained the objection and instructed the jury to disregard appellees’ comment. Because appellant timely objected, the jury heard no evidence of conduct in which appellant had purportedly engaged. We find no merit in appellant’s contentions for two reasons. First, no evidence was introduced to preclude appellant from obtaining a fair trial, and secondly, we must presume that the jury obeyed the trial judge’s instruction to disregard any incomplete question. Walker v. Texas Employers’ Ins. Ass’n., 155 Tex. 617, 620. 291, S.W.2d 298, 302 (Tex. 1956).

Appellant’s fourth point of error is overruled.

In its fifth and final point of error, appellant argues there was no evidence or factually insufficient evidence to support the jury’s finding that the death of the decedent was proximately caused by the gross negligence of appellant.

In testing a jury’s finding of gross negligence, we apply the same ‘no evidence‘ and ‘factual insufficiency‘ tests as we apply to any other fact issue. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex. 1981). The ‘no evidence‘ and ‘factual insufficiency‘ points of error are raised on appeal, the appellate court should address the ‘no evidence‘ point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). In testing a ‘no evidence‘ point, we consider only the evidence, when viewed in its most favorable light, that tends to support the jury’s finding and disregard all evidence leading to a contrary conclusion. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988). If there is any probative evidence, more that a scintilla, to support the finding, the ‘no evidence‘ point must be overruled and the finding upheld unless a factual insufficiency point has also been raised and the court sustains it on the basis of a full review of the evidence. Sherman v. First. Nat’l Bank, 760 [email protected] 240, 242 (Tex. 1988).

The record discloses the following evidence that is favorable to the jury’s finding of gross negligence. Appellant’s safety director, Robert Reeder, had no academic training regarding industrial or electrical safety. When hire by appellant, Reeder went to school to learn about the insurance aspect of workers’ compensation. Prior to being hired by appellant, Reeder ran a Spanish laboratory at the University of Houston. In his deposition, Reeder testified ‘he is against using rubber gloves because they make the men too complacent.‘

*5 The record also shows that appellant was hired by Gulf States Utilities and that Gulf States has work and safety rules that require its contractors to use insulated gloves. Furthermore, there is evidence that the National Arborist Society requires the use of insulated gloves to protect tree trimmers.

Appellees’ expert witness, a professor of electrical technology at the University of Houston, testified that in his opinion, appellant’s omissions, including lack of the use of safety gloves, lack of deenergization of the wires, and lack of the use of a bucket truck were ‘terrible.‘ He stated, ‘I don’t know that I ever witnessed (actions) which had more disregard for personal safety.‘

Our supreme court has defined gross negligence as follows:

Gross negligence, to be the ground for exemplary damages, should be that entire 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.

Burk Royalty Co., 616 S.W.2d at 920.

Because appellees’ evidence of appellant’s gross negligence, as outlined above, constitutes more than a scintilla of evidence, we find no merit to appellant’s contention that there was no evidence to support the jury’s finding that appellant was grossly negligent.

In reviewing factual sufficiency challenges, only one standard of review is used. M.J. Sheridan & Son v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex. App.–Houston (1st Dist.) 1987, no writ). The court of appeals must first examine all of the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986). Having considered and weighed all the evidence, it should set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex.App.– Houston (1st Dist.) 1988, no writ).

In reviewing the evidence on the factual insufficiency point, we note that appellant presented evidence that the decedent was an experienced employee who was provided safety training and equipment, worked as a foreman, and had trained other tree trimmers. There was also evidence that appellant, by holding daily on-the-site safety meetings, showing employees a lengthy safety video, and instructing employees not to touch the power lines, encouraged numerous safety precautions for the protection of its employees. Evidence was also introduced that appellant followed the National Arborist Association regulations. Appellant adduced further evidence that there was nothing ultrahazardous about the situation in which the decedent was working and that the limb that he was cutting was not encroaching on any power line.

*6 Appellant contends that the above evidence establishes that it was not consciously indifferent toward the safety of the decedent. It vigorously asserts that the burden of proof is upon appellees to show a conscious indifference by appellant, and that such evidence is necessary to uphold a finding by the jury of gross negligence. It also asserts that the trial court erred in failing to instruct the jury regarding the meaning of the phrase ‘conscious indifference.‘

In addressing appellant’s last assertion first, the record shows that the court’s charge gave a definition of ‘negligence,‘ or ‘ordinary care,‘ and ‘proximate cause.‘ Then, on the face of question number one, it gave the definition of ‘gross negligence.‘ There is nothing in our record to show that appellant objected in the trial court to the absence of a definition of ‘conscious indifference,‘ or submitted a definition of gross negligence. Consequently, appellant did not preserve the right to complain of its omission on appeal. Tex. R. Civ. P. 279; Tex. R. App. P. 52(a).

Appellant’s other contention is that there is no evidence to support the element of ‘conscious indifference,‘ and that such evidence is necessary to a finding of ‘gross negligence.‘ Appellant is correct that mental attitude is involved in determining conscious indifference. It is also correct in stating that mental attitude is subjective rather than objective matter. Appellant’s contention appears to be that because there is no specific verbal testimony by its witnesses that it had a ‘conscious indifference‘ toward the decedent, there is no probative subjective evidence of its mental attitude. Thus, appellant reasons that appellees failed in their proof. We disagree. Appellant’s reasoning fails because a party’s actions sometimes speak louder than its words, and actions may be considered in determining intent. Burk Royalty Co., 616 S.W.2d at 922.

The record shows that Gulf States’ contract with appellant required appellant to comply with Gulf States’ safety regulations. Those regulations required wearing insulated safety gloves. Appellant disregarded that portion of the Gulf States contract by not requiring its employees to wear safety gloves. Appellant’s director of safety, Robert Reeder, testified that although he was aware of the requirement to wear safety gloves, he opposed their use because he thought the gloves would make the employees ‘complacent.‘ In addition, he testified that in the future he did not intend to make the employees wear them.

The record also shows the lack of concern that appellant had for the safety of its employees. It hired Robert Reeder as its director of safety, knowing that Reeder had no specific academic training regarding electricity. The director’s testimony reflects his lack of knowledge in the field of electricity as well as his lack of appreciation of the dangers involved. There is also evidence that appellant did not comply with OSHA regulations which require the use of insulated safety gloves or the use of a safety blanket.

*7 We conclude that the above evidence was not only sufficient for the trial court to overrule appellant’s motion for a directed verdict, but was also sufficient for the jury to find appellant grossly negligent.

Appellant’s fifth point of error is overruled.

Appellees have raised three points of consideration; however, our disposition of appellant’s points of error make it unnecessary for us to consider appellees’ contentions in these three points of consideration.

The trial court erred in awarding prejudgment interest on punitive damages; that part of the judgment is reversed and judgment rendered that appellees receive no prejudgment interest. In all other respects, the judgment of the trial court is affirmed.

OPINION

(Feb. 19, 1991.)

We withdraw our previous opinion and substitute the following. The parties have filed a joint motion to withdraw our original opinion issued January 3, 1991, remand the matter to the trial court to effectuate settlement, and to dismiss the appeal. The motion is granted. Accordingly, we remand the case to the trial court and dismiss the appeal.

HUGHES and O’CONNOR, JJ., also sitting.

	Footnotes
1		The Honorable Jackson B. Smith, Jr., Justice, retired, Court of Appeals, First District of Texas at Houston, sitting by assignment.
2		The Second Called Session of the 71st Legislature repealed and revised the Texas Workers’ Compensation Act. Ch. 1, 2nd Called Sess., 1989 Tex. Gen. Laws. However, the old language continued in effect until January 1, 1991.