Court of Appeals of Texas,

Eastland.

YALE E. KEY, INC., Appellant

v.

Billie STRICKLAND et al., Appellees.

No. 11-97-00180-CV.

|

July 29, 1999.

Attorneys & Firms

Ben Taylor and Troyce G. Wolf, for Yale E. Key, Inc.

Drew Mouton, Alice Oliver-parrott, Denice Smith and Jeffery Taylor Nobles, for Billie Strickland et al.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and DICKENSON, S.J.⁶

OPINION

W.G. ARNOT, III, Chief Justice.

*1 Gene Strickland repaired tires for his employer, Yale E. Key, Inc . (Key), at their Forsan yard. On April 13, 1995, Gene was working on a multi-piece rim tire. The tire exploded and killed him. Gene’s family¹ sued Key for exemplary damages arising from Key’s gross negligence under TEX. LABOR CODE ANN. § 408.001(b) (Vernon 1996).

The case was first tried to a jury in June 1996. The jury did not find gross negligence. The trial court rendered a take-nothing judgment on July 16, 1996. On August 14, 1996, the plaintiffs filed a motion for new trial, motion to vacate and render judgment, and motion for sanctions. The trial court signed an order setting a hearing on plaintiffs’ motions for September 6, 1996. On September 18, 1996, the trial court held an evidentiary hearing on the motions and found that Key had concealed a material witness in the case. The trial court signed an order on the plaintiffs’ motion for sanctions and granted a new trial. After a second jury trial, the plaintiffs recovered $1.5 million in exemplary damages. The trial court ordered an additional $249,863.01 in prejudgment interest. Key appeals. We affirm.

In its third point of error, Key claims the evidence is legally and factually insufficient to support the jury’s findings on gross negligence. To challenge the legal sufficiency of the finding of gross negligence, Key must demonstrate that there is no evidence to support that finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing “no evidence” points of error, we consider “the evidence and draw all inferences in the light most favorable to the verdict.” Southwestern Bell Mobile Systems, Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998); Universe Life Insurance Company v. Giles, 950 S.W.2d 48, 51 (Tex.1997). We must uphold the jury’s finding if there is any evidence of probative force to support it. Southern States Transportation, Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). To challenge the factual sufficiency of the evidence, Key must demonstrate that there is insufficient evidence to support the adverse finding. See Hickey v.. Couchman, 797 S.W.2d 103, 109 (Tex.App.-Corpus Christi 1990, writ den’d). In reviewing an insufficient evidence challenge, we must examine all the evidence: that which supports the verdict and also that which is contrary to the jury’s determination. See Plas-Tex, Inc. v. U.S. Steel Corporation, 772 S.W.2d 442, 445 (Tex.1989). We will set aside the verdict only if the evidence which supports the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The record shows that K.C. Hasty, the manager at Key’s Forsan yard wanted to hire a tire man. Hasty interviewed Gene Strickland for a position in the shop. The position would involve fixing tires, running the backhoe, and welding. Gene told Hasty that he did not want that position but that he would run a rig. Although hesitant about his capabilities, Hasty hired Gene as a relief operator with the expectation of becoming a rig operator. Gene had problems operating a rig and was told that Key would find something else for him to do. Hasty again offered Gene the original position in the shop, and Gene accepted. Hasty testified that Gene did not want to work on multi-piece rim tires. Hasty stated that he never authorized Gene or anyone else to work on multi-piece rim tires. He testified that it would be dangerous to allow an employee to work on multi-piece rim tires without the proper tools and training.

*2 Billie Strickland contradicted Hasty’s testimony. She said that she talked to her husband the night he accepted the shop position for Key. Billie testified that her husband did not want to repair multi-piece rim tires because it was too dangerous. However, Billie stated that the family needed the paycheck and that her husband agreed to work in the shop until he found another position. Billie also said that her husband did not have the proper tools to fix multi-piece rim tires and that he was told by Hasty that the tools would be ordered.

The plaintiffs offered additional evidence to show that Hasty ordered Gene to work on multi-piece rim tires. Prior to Gene’s employment as the tire man at Forsan, Key used Allen Wimberly and Baldemar Cerna to repair tires. Hasty testified that both of these men would continue to repair multi-piece rim tires since Gene was not authorized to do such work. During the three week period that Gene worked in the tire shop, Wimberly did not repair one tire. Cerna worked on only one multi-piece rim tire when Gene was out of town. Hasty explained that, before Gene was hired, Key had a large inventory of tires.

Gene’s time sheets also reflected that he worked on multi-piece rim tires. Other employees at Key testified that they saw Gene repairing multi-piece rims. Even though he was responsible for reviewing these time sheets, Hasty claimed that he had not reviewed them. After Gene’s death, Billie approached Hasty. Billie asked Hasty if a multi-piece rim tire had killed her husband. Hasty said no. The night of Gene’s death, Sonya Welch, a former clerk in the Forsan yard approached Galin Gilbert at the grocery store. Gilbert was a rig supervisor at the Forsan yard. Welch asked Gilbert why Gene was working on the tire instead of Cerna. Gilbert said, “Oh, we fix our own flats now.”

The plaintiffs called Jackie Dale Morris to testify. Morris was hired as the tire man after Gene’s death. Hasty told Morris that he wanted him to repair all tires. Morris was provided with the proper equipment. He had no experience repairing these types of tires and never received any training. Hasty testified that he told Morris not to work on the multi-piece rim tires until he received the proper training. Morris confirmed Hasty’s testimony. Gilbert, however, told Morris that he would not receive any training. From that point on, Morris fixed between 30 and 35 multi-piece rim tires over a four-to-six week period.

We find that the evidence is legally and factually sufficient to show that Hasty acted with conscious indifference to Gene’s safety and thereby proximately caused his death.

Key also complains that the evidence is legally and factually insufficient to support the jury’s award of $1.5 million as exemplary damages. We will apply the same standards of review as previously discussed. In our assessment, we consider the following factors:

(1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety.

*3 Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981); see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.003 (Vernon 1997). The factors often overlap and “do not always apply to every award of punitive damages.” Ellis County State Bank v. Keever, 936 S .W.2d 683, 686 (Tex.App.-Dallas 1996, no writ.). We are obligated to review all factors attributable to the exemplary damage award, setting forth in detail those facts supporting the award, and to then determine whether there is legally and factually sufficient evidence to support the finding. Transportation Insurance Company v. Moriel, 879 S.W.2d 10, 30 (Tex.1994).

We find that the following evidence supports the jury’s award of exemplary damages. Hasty admitted that he was aware of the danger involved in repairing multi-piece rim tires through his personal experience. He also stated that it would be dangerous to require a person to work on these tires without the proper training and equipment. Hasty was aware that Gene did not want to work on multi-piece rim tires because they were dangerous. Hasty’s assertion that he did not authorize Gene to work on multi-piece rim tires was directly contradicted by Billie’s testimony. Furthermore, Gene’s time sheets showed that he was working on multi-piece rim tires, and the record reflects that Hasty was responsible for reviewing these time sheets each day. Hasty’s statement that Wimberly and Cerna would continue repairing multi-piece rim tires was contradicted by their testimony, their time sheets, and Gilbert’s statement to Welch.

While Key and its employees showed remorse over Gene’s death, they placed the blame entirely on Gene. Key’s disregard for its employee’s safety made Billie a widow and left her two adult children without a father. As to the ability to pay punitive damages, Key’s income statement reflects that net income was $2,274,570.00 for the nine-month period ending on March 31, 1995. Key’s net worth totaled over $22 million during the same time period. After considering all the factors announced in Kraus, we find that the evidence is both legally and factually sufficient to support the jury’s award of $1.5 million to the plaintiffs. Key’s third point of error is overruled.

In its first and second points of error, Key argues that the trial court did not have the authority to grant a new trial as a sanction for discovery abuse and contends that the July 16, 1996, take-nothing judgment should be reinstated. We disagree.

Trial courts have always had broad discretion in the granting of new trials. Johnson v. Court of Civil Appeals for Seventh Supreme Judicial District of Texas, 350 S.W.2d 330 (Tex.1961). An order granting a new trial within the period of plenary power is not subject to review either by direct appeal from that order or from a final judgment rendered after further proceedings in the trial court. Burroughs v. Leslie, 620 S.W.2d 643 (Tex.Civ.App.-Dallas 1981, writ ref’d n.r.e.). Plaintiffs filed a motion for a new trial within 30 days after the first judgment was signed. This extended the trial court’s plenary power until 30 days after the trial court entered a signed order acting upon the motion for new trial. TEX.R.CIV.P. 329b(e). The trial court granted a new trial, stating that the new trial was the result of a discovery sanction. Assuming without deciding that the trial judge stated an erroneous reason for his action, we hold that the trial court still had jurisdiction to grant the motion for new trial. See Missouri-Kansas-Texas R. Co. of Texas v. Brewster, 78 S.W.2d 575 (Tex.1934). Because the trial judge acted within the period of his plenary power, the order is not subject to our review. Key’s first and second points of error are overruled.

*4 In its fourth point of error, Key argues that the trial court erred in admitting Morris’s testimony on the issue of Key’s gross negligence. Key argues that Morris’s testimony was not relevant and violated former TEX.R.CIV.EVID. 404. The admission of evidence is a matter within the discretion of the trial court. The standard of review in determining whether a trial court erred in an evidentiary ruling is abuse of discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex.1983). The test in determining whether an abuse of discretion has been committed is whether the trial court acted without reference to any guiding rules or principles. Stated another way, the test is whether the court’s action was arbitrary or unreasonable. Downer v. Aqua Marine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. den’d, 476 U.S. 1159 (1986). The determination of whether a court abused its discretion is a matter of law. Jackson v. Van Winkle, supra.

Morris took the tire job at Key after Gene died. Hasty and Gilbert told Morris to repair all tires in the shop. Morris was provided with the proper tools, but he never received any training. Hasty told Morris not to repair the multi-piece rim tires until he was properly trained. Morris testified that Gilbert told him that he would not receive any training. At that point, Morris began repairing multi-piece rim tires. Over a four-to-six week period, Morris fixed between 30 and 35 multi-piece rim tires.

We find that Morris’s testimony was relevant and was not offered for the sole purpose of proving the character of Hasty and showing that he acted in conformity with his character. When Morris asked Hasty and Gilbert if the tire-job position was available, Morris was transferred to the shop. The job description given to Morris was identical to the position Gene had held. This evidence shows that Hasty hired Morris to perform Gene’s job, which included repairing multi-piece rim tires. Although Hasty told him he needed training before he was to work on multi-piece rim tires, Morris repaired multi-piece rims without any training. Hasty was Morris’s direct supervisor and had earlier testified that he would never ask an employee to work on multi-piece rim tires without the proper training. The testimony is relevant to impeach Hasty’s prior statement. Point of Error No. 4 is overruled.

In its fifth point of error, Key complains that the trial court abused its discretion by permitting Billie to testify as to her lay opinion, speculation, or belief that Key directed her husband to work on multi-piece rim tires and was responsible for his death. The relevant testimony reads as follows:

[PLAINTIFFS’ ATTORNEY]

Q: Do you feel like Yale E. Key is responsible for Gene’s death?

[DEFENSE ATTORNEY] Your Honor, obviously-

A: Yes, sir.

[DEFENSE ATTORNEY]-that would be outside the scope of her qualifications, and she’s not an expert witness and I think-

THE COURT: Sustained.

*5 [PLAINTIFFS’ ATTORNEY]: Well, Your Honor, we’re not offering it as expert testimony. We’re asking her what it is that she thinks Yale E. Key did wrong in this case and why she brought the lawsuit, and I think the jury is entitled to know that.

[DEFENSE ATTORNEY]: Your Honor-

THE COURT: You can ask her what she thinks Yale E. Key did wrong.

[PLAINTIFFS’ ATTORNEY]: Okay. Okay. I see the distinction. I apologize. That’s fine.

[DEFENSE ATTORNEY]: May I take her on voir dire examination, Your Honor, before we do that?

I don’t know that that would be in the form of opinion testimony. I think it would be improper as far as what she thinks-

THE COURT: Well, let’s put it this way. I’ll allow her to state what she maintains they did.

[PLAINTIFFS’ ATTORNEY]

Q: Ms. Strickland, do you maintain that Yale E. Key did anything wrong that caused your husband to be killed?

A: Yes, sir, I sure do.

Q: What do you think they did wrong?

[DEFENSE ATTORNEY]: Can we have a continuing objection, Your Honor?

THE COURT: You may.

Billie went on to tell the jury that Key asked her husband to perform an unsafe job and that Key directed her husband to work on multi-piece rim tires. On appeal, Key argues that Billie’s testimony constitutes improper lay opinion testimony because her opinion of Key’s liability stems solely from the hearsay statements of her deceased husband.²

We find, however, that Key failed to preserve error as to this argument. Generally, when a party makes a proper objection to the introduction of certain testimony by a witness that is overruled, he is entitled to assume that the judge will make the same ruling as to other offers of similar evidence, and he is not required to repeat the objection. Atkinson Gas Company v. Albrecht, 878 S.W.2d 236 (Tex.App.-Corpus Christi 1994, writ den’d). This is particularly true when the party has obtained a running objection. The party, however, must still set fourth specific grounds for the original objection, and a ruling must be secured. Former TEX.R.CIV.EVID. 103(a)(1); TEX.R.APP.P. 33.1(a).

Key’s objection was neither specific, nor apparent from the context, so as to put the trial court on notice of the error which is claimed on appeal. Additionally, a ruling as to the original objection was never obtained. Furthermore, the argument on appeal does not comport with the objection made at trial; the error, if any, is waived. See Federal Deposit Insurance Corporation v. Golden Imports, Inc., 859 S.W.2d 635, 641 (Tex.App.-Houston [1st Dist.] 1993, no writ). Point of Error No. 5 is overruled.

In its sixth point of error, Key complains that the trial court erred and violated Key’s constitutional rights by awarding exemplary damages because there is no evidence or jury findings concerning plaintiffs’ actual damages. Consequently, Key argues that because no actual damages were proven, a reasonable relationship between plaintiffs’ exemplary and actual damages can not be assessed. We disagree.

*6 We find that Wright v. Gifford-Hill & Company, Inc., 725 S.W.2d 712 (Tex.1987), controls the outcome of this case. In Wright, a widow sued her husband’s employer to recover exemplary damages for the death of her husband under former TEX.REV.CIV.STAT. art. 8306, § 5 (1967).³ The jury found that Gifford-Hill’s gross negligence had proximately caused his death and awarded $450,000.00 in exemplary damages. The jury charge did not include an issue of actual damages. Wright v. Gifford-Hill & Co., Inc., 705 S.W.2d 868, 869 (Tex.App.-Waco 1986), rev’d, 725 S.W.2d 712 (Tex.1987). The trial judge granted judgment notwithstanding the verdict in favor of Gifford-Hill. The Court of Appeals affirmed, stating that Wright’s failure to secure jury findings on the existence and amount of actual damages prevented her from recovering exemplary damages as required in Fort Worth Elevators, Co. v. Russell, 70 S.W.2d 397 (Tex.1934), and Nabours v. Longview Savings & Loan Association, 700 S.W.2d 901, 903 (Tex.1985).

The supreme court in Wright v. Gifford-Hill & Company, Inc., supra, reversed the appellate court’s decision. The supreme court characterized the language in Forth Worth Elevators, requiring recovery of actual damages in order to recover exemplary damages under a worker’s compensation case, as dicta. The court held that a plaintiff need not secure a finding on the amount of actual damages in order to recover exemplary damages for wrongful death under the Worker’s Compensation Act, and it disapproved that portion of Fort Worth Elevators. Wright v. Gifford-Hill & Company, Inc., supra at 714. We hold that the trial court did not err by awarding exemplary damages.

Key also argues that there is no reasonable relationship between plaintiffs’ exemplary damages and their actual damages. The Texas Supreme Court in Wright addressed this issue as well. The court noted, that under Texas law, actual damages are used to indicate the reasonableness of exemplary damages under the rule that exemplary damages must be rationally related to actual damages. However, this reasonable relationship requirement is only a tool to aid the courts in determining when an exemplary damage award is a product of passion rather than reason. Wright v. Gifford-Hill & Company, Inc ., supra at 714, citing Tynberg v. Cohen, 13 S.W. 315, 316 (Tex .1890). The court listed the Kraus factors as ones to be considered when determining whether the exemplary damages are reasonable in the absence of a finding of actual damages. We have previously discussed these factors in Key’s third point of error. After considering the evidence as required in Kraus, we hold that the exemplary damages were reasonable. Key’s sixth point of error is overruled.

In his seventh point of error, Key argues that the trial court erred in awarding prejudgment interest on the exemplary damages. The trial court awarded $249,863.01 in prejudgment interest. Key claims that prejudgment interest is not permissible on an award of exemplary damages. Key relies upon Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 555-56 (Tex.1985).

*7 Two years after Cavnar was decided, the Texas Legislature passed a comprehensive package of legislation known as “tort reform .” See Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex.1998); see generally Sanders & Joyce, “Off to the Races”: The 1980s Tort Crisis and the Law Reform Process, 27 HOUSTON L.REV. 207 (1990). Part of the tort reform legislation added former TEX.REV.CIV.STAT. art. 5069-1.05, § 6 (1987).⁴ Section 6 partially codified and modified the Cavnar rule by providing that “judgments in a wrongful death, personal injury, or property damage case must include prejudgment interest.” The statute did not exclude prejudgment interest for exemplary damages as the Texas Supreme Court had in Cavnar.

Another part of the legislation included TEX. CIV. PRAC. & REM. CODE ANN. § 41.001 et seq. (Vernon 1997 & Supp.1999), entitled “Exemplary Damages.” Section 41.007 of that chapter states: “Prejudgment interest may not be assessed or recovered on an award of exemplary damages.” However, former Section 41.002(b)(4)⁵ specifically exempted an action to recover exemplary damages:

Against an employer by the employee’s beneficiaries in a death action arising out of the course and scope of employment where the employer is a subscriber under the workers’ compensation laws of this state.

Consequently, Section 41.007 does not apply to this case.

We must now determine whether the plaintiffs’ suit falls within one of the categories listed in former Article 5069-1.05, section 6. If not, then any award of prejudgment interest is governed by the common law. Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., supra at 530. Both parties agree that the case is not a property case. The plaintiffs argue that it is both a wrongful death and a personal injury case because the case arises from personal injuries that resulted in Gene’s wrongful death. Key argues, first, that the case is not a wrongful death case because the wrongful death act applies only to a cause of action which a decedent could have brought had he survived. TEX. CIV. PRAC. & REM. CODE ANN. § 71.003 (Vernon 1997); see also Russell v. Ingersoll-Rand Company, 841 S.W.2d 343, 348-49 (Tex.1992). In this case, the decedent could not have brought this action against Key if he had survived because of the exclusive remedy provision of the Workers’ Compensation Act. See TEX. LAB. CODE ANN. § 408.001 (Vernon 1996). We agree that the case is not a wrongful death suit.

Next, Key argues that the case is not a personal injury case because the plaintiffs are not entitled to recover, nor did they allege, any personal injury compensatory damages, pain and suffering, or mental anguish. Also, neither the decedent nor the survivors could bring this action as a personal injury action because such action is excluded by Section 408.001(a). The statute does not define what constitutes a personal injury case. Apparently, no court has addressed the question. We must construe the statute liberally to achieve its purposes of fully compensating plaintiffs and of encouraging settlements. See TEX. GOVT. CODE ANN. § 312.006(a) (Vernon 1998); see also Robinson v. Brice, 894 S.W.2d 525 (Tex.App.-Austin 1995, writ den’d). We find that the plaintiffs’ suit is a personal injury case for the purposes of the statute. We overrule Key’s seventh point of error.

*8 The judgment of the trial court is affirmed.

	Footnotes
6		Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.
1		The family consists of: Billie Strickland, Gene’s wife, and Connie Moore and Eugenia Andrews, Gene’s daughters.
2		Key did not object to the hearsay statements
3		See now TEX. LAB. CODE ANN. § 408.001(b) (Vernon 1996).
4		Effective September 1, 1997, former Article 5069-1.05, section 6 was codified in TEX. FIN. CODE ANN. § 304.101 et seq. (Vernon 1998). No substantive change in law was made by the codification.
5		Section 41.002(b) has since been amended, and it no longer contains this provision.