Court of Appeals of Texas, Dallas.

OTIS ENGINEERING CORPORATION, Appellant,

v.

Lonnie L. PENNINGTON, Appellee.

No. 05-91-00002-CV.

|

July 23, 1992.

Before ROWE,¹THOMAS and BURNETT, JJ.

O P I N I O N

THOMAS, Justice.

*1 This is an appeal arising out of a suit for wrongful discharge pursuant to article 8307c of the Texas Workers’ Compansation Act (the Act). In two points of error, Otis Engineering Corporation contends that there is no evidence or, alternatively, insufficient evidence to support the jury’s finding that it discharged appellee, Lonnie L. Pennington, in violation of the Act. In a single cross-point, appellee asserts that the trial court erred in disregarding the jury’s answer which awarded him punitive damages and in failing to award him punitive damages. We affirm the trial court’s judgment.

FACTUAL BACKGROUND

Otis manufactures pressure-control devices used in drilling oil and gas wells. In 1974, appellee was hired as a machine parts inspector in its quality control department. Adverse economic conditions caused by low oil prices from 1982 to 1986 caused Otis to lay off approximately 1700 employees. During this time period, the number of parts inspectors in the quality control department decreased from 105 to 35.

Before May 1986, Otis laid off employees according to seniority. However, Otis realized that it was losing employees with critical skills, which hampered its daily production abilities. Therefore, Otis implemented a new layoff policy. Pursuant to the May 1986 policy, supervisors identified critical skills, i.e., skills for which employees were specially trained or certified to perform. Supervisors would then identify employees who had at least one critical skill and were versatile. If the critical skills were equal, performance appraisals would be the determining factor. If all of these factors were equal, employees would be laid off according to seniority.

The general sequence of relevant events is as follows:

1. September 2, 1986, appellee suffered an on-the-job back injury while lifting a part he was inspecting. He reported the injury to his supervisor, Grady Peterson.

2. September 15, 1986, Peterson signed a first-report-of-injury form.

3. October 1986, Otis laid off a number of employees, some with more seniority than appellee.

4. December 31, 1986, Otis laid off eight employees, including appellee.

5. April 1, 1987, Otis learned that appellee hired an attorney to represent him in filing a workers’ compensation claim.

6. June 1987, appellee filed this 8307c action alleging that Otis had terminated him because he had instituted a proceeding under the Act.

A jury found that: (1) Otis discharged appellee in violation of article 8307c; (2) reasonable damages for lost wages and employment benefits totalled $73,900; (3) appellee was not entitled to damages for past mental anguish; (4) Otis acted willfully, but not maliciously, in discharging appellee; and (5) exemplary damages of $40,000 should be awarded. The trial court awarded appellee $73,900 for lost wages and employment benefits plus pre-judgment interest, costs, and reinstatement with all seniority and pay to his former position with Otis. Because the jury found that Otis had not acted maliciously in discharging appellee, the trial court did not award exemplary damages.

STANDARD OF REVIEW

*2 In two points of error, Otis argues that there is no evidence or, alternatively, factually insufficient evidence to support the jury’s finding that it discharged appellee in violation of the Act. Specifically, it contends that appellee failed to establish a causal link between the institution of his proceeding under the Act and his termination.

A no-evidence point is a question of law. In deciding that question, we consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Jacobs v. Danny Darby Real Estate, Inc., 750 S.W.2d 174, 175 (Tex. 1988). The jury’s findings must be upheld if there is more than a scintilla of evidence to support them. Stedman v. Georgetown Sav. & Loan Ass’n, 595 S.W.2d 486, 488 (Tex. 1979). Evidence is no more than a scintilla when it is “so weak as to do no more than create a mere surmise or suspicion of [the fact’s] existence.” Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex. 1970) (quoting Calvert, “No Evidence” & “Insufficient Evidence Points of Error, 38 TEX. L. REV. 361 (1960)). If the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, however, then there is some evidence or, in other words, more than a scintilla of evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

In reviewing a factual insufficiency point, we consider all of the evidence, including any evidence contrary to the judgment. 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). This Court must consider, weigh, and compare all of the evidence in the record pertinent to the issue under consideration. Sosa v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex. 1989) (per curiam); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). A finding can be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). When both noevidence and insufficient-evidence points are raised, we are to rule upon the no-evidence point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).

In making its findings, the jury weighs the evidence, assesses the credibility of witnesses, and resolves conflicts and inconsistencies. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The jurors are the judges of the facts proved and of the reasonable inferences to be drawn therefrom. Lockley v. Page, 142 Tex. 594, 598, 180 S.W.2d 616, 618 (1944). This Court is not a factfinder, and we cannot substitute our judgment for that of the jury, even if a different answer could be reached on the evidence. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.-Dallas 1986, writ ref’d n.r.e.).

ARTICLE 8307c

Appellee sued Otis for wrongful discharge pursuant to article 8307c of the Act. Article 8307c provides in pertinent part:

*3 Section 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.

TEX. REV. CIV. STAT. ANN. art. 8307c(1) (Vernon 1991). The employee has the burden of proof. TEX. REV. CIV. STAT. ANN. art. 8307c(2) (Vernon 1991).

Article 8307c protects persons who are entitled to benefits under the Act and prevents them from being discharged for taking steps to collect such benefits. Carnation Co. v. Borner, 610 S.W.2d 450, 453 (Tex. 1980). The employee in an article 8307c claim must prove a causal link between the institution of a workers’ compensation claim and his termination. Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex. App.-Dallas 1986, no writ) (citing Santex, Inc. v. Cunningham, 618 S.W.2d 557, 560 (Tex. Civ. App.-Waco 1981, no writ)). He need not prove that the filing of the compensation claim was the sole cause for dismissal, but merely a cause. See Azar Nut Co. v. Caille, 720 S.W.2d 685, 687 (Tex. App.-El Paso 1986), aff’d, 734 S.W.2d 667 (Tex. 1987). Once the employee establishes the causal link, the burden shifts to the employer to show a legitimate motive for the firing. Hughes Tool Co. v. Richards, 624 S.W.2d 598, 599 (Tex. Civ. App.-Houston [14th Dist.] 1981, writ ref’d n.r.e.), cert. denied, 456 U.S. 991 (1982). An affirmative finding on a special issue regarding the employer’s explanation for the termination does not negate the possibility that the compensation claim was also considered by the employer as a reason for the termination. See Santex Inc., 618 S.W.2d at 559-60.

EVIDENCE AND INFERENCES SUPPORTING THE JURY’S FINDINGS

On September 2, 1986, appellee injured his back and reported it to his supervisor, Grady Peterson. Appellee testified that, a week and a half later, he asked Peterson if he had filled out the first-report-of-injury form; Peterson said that he had not had time. Peterson told appellee to fill out the report and to return it to him, which appellee did. Peterson signed the first-report-of-injury form on September 15, 1986.

Appellee testified that, a week or two after the accident, he told Joel Rouvaldt, manager of quality control, that his back still hurt. Appellee told Peterson that, if his back continued to hurt, he probably would go to the doctor. Peterson acknowledged that, although an injured employee might not lose time from work right away, it is not uncommon that he may lose time later due to the injury. Peterson further testified that he would expect an employee to file a compensation claim if his back injury worsened. Appellee testified that he did not visit a doctor about his injury because he knew that he would need physical therapy. He did not want to miss time from work because Otis was laying off employees, and he knew that a lost-time accident would jeopardize his job.

*4 Rouvaldt identified six critical skills in the quality control department: nondestructive examination, alloy analyzer, coordinate measuring machine, premium threading inspection, certified welding inspection, and material destruction. Rouvaldt testified that appellee would not have been laid off if he had any of these critical skills. During his employment at Otis, appellee was foreman and/or supervisor over three of the critical skills. Appellee also was an Inspector A, which requires the employee to perform the task, i.e., it is not a supervisory position. Appellee testified that he was competent to perform the critical skills that he had supervised. He stated that he would not have been chosen supervisor had he not been competent to do the work. When appellee was supervisor over certified welding inspection, he was instrumental in revising and implementing new inspection procedures. Appellee testified that he performed, supervised, and trained premium thread inspection and taught others to perform nondestructive testing and material certification, critical skills. Appellee further testified that he knew material certification, did it on numerous occasions, and taught another employee to do it. He testified that he was competent, but not qualified, to perform certified welding inspection, nondestructive examination, and material certification. He was competent and qualified to do premium threading inspection.

In his August 1986 performance appraisal, appellee received “commendable” ratings in seven categories, including safety. All of the performance ratings for safety, except the lowest rating, refer to on-the-job injuries as a consideration. The safety ratings on the performance appraisal state that the employee incurred no lost-time injuries and always used safe working habits. Kay McInnish, personnel manager, and Mike Taylor, an Otis supervisor, testified that an injury caused by failing to observe safety regulations or to use a safety appliance would result in a lower safety rating. Taylor testified that an employee would not be rated commendable after failing to follow company regulations or to use a safety device. Appellee’s first-report-of-injury form states that his accident was caused by his failure to use a safety appliance or to observe a regulation. The report was in appellee’s personnel file, which was reviewed in making the layoff decision.

McInnish stated that one guideline for layoffs is the performance appraisal, and part of safety on the performance appraisal relates to on-the-job injury. If an employee failed to follow company regulations or to use a safety device, there would be some impact on the employee’s performance appraisal, and the appraisals were a factor in determining whether someone was laid off. In his deposition, Rouvaldt initially stated that work-related-injury accidents are a factor in merit raises, although he changed this statement after Otis’ attorney requested to conference with him.

*5 At trial, Otis could not produce any documentation supporting appellee’s layoff. Otis employees testified that they did not know what had happened to the documentation; they did not intentionally destroy it or throw it away. Otis’ written policy states that the manager (Rouvaldt) should provide the personnel department with a layoff list and documentation supporting all layoff decisions; the personnel department keeps the documentation for one year. Appellee sued Otis less than one year after his layoff.

McInnish testified that Halliburton owns Otis and Highlands Insurance Company, Otis’ workers’ compensation carrier at the time of appellee’s injury and layoff. Thus, workers’ compensation benefits ultimately come out of the company’s pocket. She also stated that back injuries are one of the most expensive compensation items. Peterson testified that any injury is serious and that back injuries are ranked with amputation, severe burn, death, and serious head injuries; all are reported to Otis’ legal department.

Appellee testified that the fact that he was terminated in December 1986 and did not meet the criteria used for layoff supports his claim that he was terminated for filing a compensation claim. Appellee stated that he was terminated because he had a lost-time accident and because Otis was looking at damages and at him being off work.

Otis’ failure to produce the documentation supporting its decision to lay off appellee raised the presumption that, if offered, the evidence would have been unfavorable to it.

City of Galveston v. State, 518 S.W.2d 413, 417 (Tex. Civ. App.-Houston [14th Dist.] 1975, no writ) (failure of a party to produce evidence within its control raises presumption that, if offered, the evidence would have been unfavorable to that party). Although this presumption disappeared in light of testimony that Otis did not intentionally destroy the documentation, evidence of the nonproduction remained before the jury. The jury, as factfinder, could draw reasonable inferences from that evidence. The documentation concerning appellee’s layoff might have contained evidence bearing on the causal-link issue. Otis argues that the jury found that it did not act maliciously in discharging appellee and, thus, could not have made this unfavorable inference. We disagree. The finding that Otis did not act maliciously is not inconsistent with an inference that the missing documentation contained evidence that would establish a causal link between the discharge and the institution of a proceeding.

Having considered only the evidence supporting the verdict, including the inferences that could be drawn therefrom, we find some evidence to support the jury finding that appellee’s back injury was a cause of his termination. The first point is overruled.

SUMMARY OF THE REMAINING EVIDENCE

Having determined that there is some evidence to support the verdict, we now provide the analysis of all the evidence which must be weighed and considered in deciding whether the evidence is factually sufficient to support the jury’s findings. The evidence in support of the jury’s findings appears in our disposition of the no-evidence points, and we will not repeat it, unless necessary.

*6 Peterson and Rouvaldt testified that, although Peterson did not sign appellee’s first-report-of-injury form until thirteen days after the accident, the report was not delayed. They stated that there was no reason to expedite the report because appellee’s injury was not serious; he neither missed work nor went to the hospital. It is undisputed that, after his injury, appellee was fully able to perform his job, that his superiors never criticized his performance, that he was treated fairly on the job, that he missed no days of work, and that he was neither harrassed nor ridiculed because of his injury. Rouvaldt testified that appellee told him that his back was fine.

About one month after appellee’s injury, Otis laid off three machine parts inspectors; one layoff was voluntary. The other two inspectors were laid off because of low performance appraisals and because they had no critical skill. Both involuntarily laid-off employees had more seniority than appellee.

In December 1986, Otis was faced with laying off an additional eight quality control inspectors. Rouvaldt met with department supervisors to determine who to lay off. Rouvaldt, Peterson, and Taylor, who were present at the meeting, testified that they followed the May 1986 layoff guidelines. The supervisors first ranked the quality control inspectors according to seniority. They then “blocked out” the ten inspectors who had a critical skill; these employees were protected from layoff. The supervisors testified that they did not consider performance because all of the remaining inspectors were considered the “cream of the crop.” Because performance was considered equal, the supervisors considered only critical skills and seniority. Six employees volunteered for layoff. Thus, they selected appellee and another inspector for involutary layoff because they were the two inspectors who had no critical skill and the least seniority. Although appellee’s first-report-of-injury form was in appellee’s personnel file, which was reviewed in the layoff decision, Rouvaldt testified that he paid no attention to it. The supervisors stated that appellee’s back injury did not influence the layoff decision.

Rouvaldt and Peterson testified that appellee had none of the six critical skills. They further stated that appellee was neither qualified nor competent to perform the critical skills over which he had been foreman or supervisor. Otis does not require foremen to be able to perform their subordinates’ jobs because a foreman’s job is to manage his subordinates, not to do the hands-on work. Although machine parts inspection (appellee’s job) was critical, it was not considered a critical skill for layoff purposes because all of the remaining employees in the department had that skill.

Rouvaldt testified that an employee would not be downgraded automatically if he suffered an on-the-job injury and lost time from work. Rouvaldt and Peterson stated that they never had downgraded anyone, including appellee, because of an on-the-job injury. Peterson testified that the no-lost-time-injury reference on the performance appraisal means that an employee has not missed work due to working unsafely. If an employee’s injury could not have been prevented, the injury is not held against him. Peterson testified that an injury would not make a difference between commendable and competent safety ratings. McInnish testified that the safety factor on the performance appraisals would have only a remote affect on the determination to lay off an employee. Rouvaldt testified at trial, contrary to his deposition testimony, that work-related injury accidents are not a factor in performance appraisals.

APPLICATION OF LAW TO THE FACTS

*7 Otis cites twelve cases that it contends illustrate the circumstances in which plaintiffs have properly established an article 8307c claim.² Otis argues that, unlike the facts of those cases, appellee did not claim that any confrontation over the injury ever occurred or that there was any ill will or animus. Otis argues that all of the evidence shows that appellee was treated fairly and was never harassed in any way. Further, it asserts, appellee did not have a serious injury that required an extended time off the job and he was not discharged immediately following his injury. They point out that appellee neither filed his claim nor hired an attorney until months after his termination and that the only step he took towards “instituting a proceeding” while employed at Otis was telling Peterson that he might be injured and preparing a first-report-of-injury form. Thus, Otis concludes, the facts show a complete lack of any connection between appellee’s injury and his termination. The cases cited by Otis all involve direct evidence of the employer’s wrongful motive, i.e., a causal link. The evidence in those cases showed a pattern of conduct sufficient to establish the employer’s hostility toward the employee as a result of filing a workers’ compensation claim. Such cases shed little light on this case, which involves circumstantial evidence. The employee may prove wrongful intent inferentially. Circumstantial evidence and reasonable inferences from the evidence may provide adequate support for the jury’s affirmative finding of wrongful termination. Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex. App.-El Paso 1989, writ denied).

Otis asserts that this case is directly analogous to Hughes Tool Co., where the court of appeals reversed a jury finding of liability under article 8307c because the employee had failed to show a causal link. There, the employee received treatment for an injury in the employer’s infirmary. He became upset and verbally abused and threatened his fellow employees. Hughes Tool Co., 624 S.W.2d at 599. The court determined that the evidence regarding the confrontation at the infirmary might bear on the correctness of the discharge for this conduct, but that it had no bearing on whether the employee was fired for having instituted proceedings to collect workers’ compensation benefits. Hughes Tool Co., 624 S.W.2d at 599. The court pointed to the fact that all of the testimony by employer’s decision-makers indicated that the employee was fired because of his misconduct. Further, the employee testified that the basis for his article 8307c lawsuit was that, in his opinion, his employer would not accept that fact that he was injured and had denied him the right to see a doctor. The court held that this evidence fell short of establishing a causal link. Hughes Tool Co., 624 S.W.2d at 599.

*8 Otis argues that, although evidence of appellee’s skills address the correctness of its decision to terminate him, it does not address the causal-link issue. We disagree. Rouvaldt’s testimony that appellee would not have been laid off if he had a critical skill made the question of his skills relevant to the causal-link issue. The jury, in weighing the conflicting evidence on this point, could determine that appellee had a critical skill and, thus, could disbelieve Otis’ explanation for terminating Appellee. If the jury disbelieved this explanation for appellee’s discharge, it could reasonably infer Otis’ wrongful motive.

Otis further contends that the record shows that, at the time of appellee’s layoff, Otis had no reason to know or suspect that he had suffered any kind of serious injury for which workers’ compensation benefits would be sought or paid months after the discharge. Thus, Otis argues, no direct or indirect facts establish that Otis had an unlawful motive for laying off appellee.

Appellee responds that, although he did not miss time from work, he complained several times to Peterson that his back still hurt and that he might have to see a doctor about his injury. He further argues that his on-the-job injury, by the terms of Otis’ layoff policy, influenced his termination. Otis supervisors stated that on-the-job injuries were taken into consideration when evaluating employees for merit raises, i.e., when filling out the performance appraisals. McInnish testified and the May 1986 layoff guidelines provided that the performance appraisals were considered in determining who to lay off. Supervisors were allowed to document changes in an employee’s performance level in making layoff decisions. The type of accident suffered by appellee would cause a less favorable performance appraisal. Therefore, appellee asserts, the company’s layoff policy established a causal link between his compensation proceeding and the termination.

The evidence was hotly contested by both parties at trial. Evidence on key points was conflicting. The jury judged the credibility of the witnesses, and we cannot substitute our opinion for theirs or retry the facts. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986) (per curiam). After considering all of the evidence, especially the inferences arising therefrom, we conclude that a finding of a causal link is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Accordingly, Otis’ second point is overruled.

EXEMPLARY DAMAGES

In a single cross-point, appellee complains that the trial court erred in disregarding the jury’s answer to question five, which awarded punitive damages, and in failing to award him punitive damages. Appellee asserts that, because the jury found in response to question three that Otis acted willfully in discharging him, the trial court should have awarded the $40,000 in exemplary damages as found in question five. Otis contends that the record supports the trial court’s decision to disregard the jury’s answer to question five because: (1) as a matter of law the finding that Otis “willfully discharged” appellee cannot support an award of punitive damages; (2) the jury’s answer to question four, that Otis did not act maliciously, rendered question five immaterial; and (3) there was no evidence to support the jury’s answer to question five.

*9 Following the verdict, Otis moved for judgment n.o.v. or, alternatively, to disregard findings on special questions. The motion addressed, among other things, the jury’s answer to question five. The trial court denied Otis’ motion for judgment n.o.v., but granted in part its motion to disregard. The trial court then disregarded the jury’s answer to question five, which awarded punitive damages, because the jury found in question four that Otis did not act maliciously.

Exemplary damages are recoverable under article 8307c. Azar Nut Co., 734 S.W.2d at 669. Exemplary damages are recoverable for, and only for, such injuries as result from wrongs accompanied by some aggravating circumstances. Bennett v. Howard, 170 S.W.2d 709, 712 (Tex. 1943). The mere fact that an act is intentional or is legally wrongful will not support an award of exemplary damages. Exxon Corp. v. Bell, 695 S.W.2d 788, 790 (Tex. App.-Texarkana 1985, no writ). Further, exemplary damages may not be recovered for the mere violation of a statute made for the protection of persons from injury. Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943). The act must be intentionally wrongful or must be motivated by ill will and a desire to injure the other party. Exxon Corp., 695 S.W.2d at 790.

Appellee urges that the jury finding in question three, that Otis willfully discharged him, supports the award of punitive damages. He interprets this answer as a jury finding that Otis willfully violated article 8307c in discharging him. Question 3 did not define “willfully.” Willful means deliberate, voluntary, or intentional. WEBSTER’S ENCYCLOPEDIC UNABRIDGED DICTIONARY 1634 (1989).

The jury’s finding that Otis “willfully” discharged appellee is insufficient as a matter of law to serve as the basis for awarding exemplary damages. Question three, as written, asks whether Otis intentionally, voluntarily, or deliberately discharged appellee. It does not ask whether Otis willfully violated article 8307c. Question three, as written, does not require the jury to determine whether Otis committed the type of intentionally wrongful act that would justify the imposition of exemplary damages. At most, the jury’s answer to this question shows an intentional, deliberate, or voluntary act. This showing does not support an award of punitive damages.

Jury answers to special issues may be disregarded when the issue is immaterial. Intertex, Inc. v. Cowden, 728 S.W.2d 813, 818 (Tex. App.-Houston [1st Dist.] 1986, no writ) (citing C & R Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex. 1966)). Here, the jury finding that Otis did not act “maliciously” rendered its answer to question five immaterial since the jury’s answer to question three did not support an award of exemplary damages.

Therefore, we conclude that the trial court did not err in disregarding the jury’s answer to question five and in failing to award appellee exemplary damages. Accordingly, the cross-point is overruled.

*10 We affirm the trial court’s judgment.

Do Not Publish

Tex. R. App. P. 90

	Footnotes
1		The Honorable Gordon Rowe, Justice, participated in this case at the time it was submitted for decision. Due to his resignation on December 2, 1991, he did not participate in the issuance of this opinion.
2		Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654 (Tex. App.-El Paso 1990, writ denied); General Elec. Co. v. Kunze, 747 S.W.2d 826 (Tex. App.-Waco 1988, writ denied); Wal-Mart Stores, Inc. v. Kee, 743 S.W.2d 296 (Tex. App.-Tyler 1987, no writ); Azar Nut Co. v. Caille, 720 S.W.2d 685 (Tex. App.-El Paso 1986), aff’d, 734 S.W.2d 667 (Tex. 1987); VanTRAN Elec. Corp. v. Thomas, 708 S.W.2d 527 (Tex. App.-Waco 1986, writ ref’d n.r.e.); Santex, Inc. v. Cunningham, 618 S.W.2d 557 (Tex. Civ. App.-Waco 1981, no writ); Luna v. Daniel Int’l Corp., 683 S.W.2d 800 (Tex. App.-Corpus Christi 1984, no writ); Murray Corp. v. Brooks, 600 S.W.2d 897 (Tex. Civ. App.-Tyler 1980, writ ref’d n.r.e.); Schrader v. Artco Bell Corp., 579 S.W.2d 534 (Tex. Civ. App.-Tyler 1979, writ ref’d n.r.e.); A.J. Foyt Chevrolet, Inc. v. Jacobs, 578 S.W.2d 445 (Tex. Civ. App.-Houston [1st Dist.] 1979, no writ); E-Tex Dairy Queen, Inc. v. Adair, 566 S.W.2d 37 (Tex. Civ. App.-Beaumont 1978, no writ); Texas Steel Co. v. Douglas, 533 S.W.2d 111 (Tex. Civ. App.-Fort Worth 1976, writ ref’d n.r.e.).