*3 PRESSLER, Before PAUL appellees Several the individual were ELLIS, ROBERTSON and JJ. Amdel, elected in the group officers Inc. appellees
Local 4-23. These were: 1) Hildabridle; L.M. “Max” 1st Vice OPINION Safety Chairman and Alternate in the PRESSLER, PAUL Justice. Committee.- $397,000 Appellants were awarded in ac- 2) Page; Robert Intermediate Steward. $785,000 damages tual and in exemplary 3) Gonsoulin; Departmental Glenn Stew- injuries during received a bitter labor ard. dispute County, in Jefferson Texas. The 4) Ray Lynch; Chaplain. trial court jury overturned the and verdict is not clear from the record whether or granted judgment non obstante veredicto in not the other three individual appellee. favor We reverse and render. positions held official in the Union. judgment The review of a n.o.v. evidence, light The most favorable as challenge legal same that of a to the verdict, 7, January follows: On sufficiency of the evidence. Energy, Aero Amdel, (The group 1982 the Inc. American Drilling Company, 669 Inc. v. Circle C. Refinery Employees) Petrofina of Local 4- granting S.W.2d (Tex.1985). 23, Oil, a division of the and Chemical judgment n.o.v. the trial court held that the (O.C.A.W.), Atomic Union AFL- Workers legally uphold evidence was insufficient to CIO, voted to strike. The contract labor uphold verdict. To this order of midnight expired stoppage at and a work court, the trial it must be found that there began at that time. At issue was refin- support is no evidence the jury verdict. ery’s ability many men determine how Tex.R.Civ.P. 301 states as follows: particular job. do were needed to The Provided, upon that motion and reason- refinery productivity was concerned with judg- notice able the court render manpow- a more efficient utilization non ment obstante veredicto if a directed The er. Union was concerned that proper, pro- verdict would been have might cause time layoffs. At that the se- may, upon vided further that the court curity guards represented longer were notice, motion disregard like participate O.C.A.W. did not finding question guards on a that has no stoppage. the work Most of the reassigned prevent the evidence. were them be- four by three or bullets guardhouse was hit dispute middle of the when thirty-thirty weapon fired of some of those involved. from a which were friends were inside the people from other Fina refineries Three Guards rounds. brought security. guardhouse, injured. in for none was but were slashed that tires of several vehicles 1982, September On almost ten pickets were no night. same There began, appellant, months after the strike time, testi- area but Mr. Crabtree at Hinote, picket line. William H. crossed generally do fied the acts of violence testified that he the Union Hinote felt He on the line. stated not occur working to resolve the strike. The usually while em- acts occurred returned, day Mrs. Hinote received a work, at going to and from ployees were stated, telephone call home. voice around the employees’ homes and him.”, get and, “you “Tell Bill had we will gates plant at the plant’s perimeter. The your girl.” better watch little equipped with video cameras at the Similar calls were received continuously. taped which *4 employed. Mrs. Hinote store where was 20, February appellee Leo M. “Max” 23, On September Hinote returned to On was involved in an altercation dummy, wearing A Hildabridle work. clothes identical security guard. others had the with a He and to those which Mr. Hinote had worn before, hangman’s throwing guardhouse. day hung was from a rocks gate. sign dummy security guard, Tommy King, on The left the noose The on the (Em- guardhouse investigate read is what do to matter “This we scabs.” when phasis September On 26th the Hi- a knife. threatened him with Hildabridle police spoke note home was bombarded with small rocks with Mr. The were called and ballbearings. September 29th Mr. police On After the officers Hildabridle. daughter weight, large left, Mendoza, Hinote’s found a Fina regular a secur- Roland curtains, large weight like one used to in ity guard, to talk Mr. Hilda- went out with driveway. weight type their taped played The was bridle. conversation a called “dead man.” Mr. Hinote was also went, in jury. part, for the follows: n King: It’s them followed home numerous occasions. there, right isn’t it? 2nd, On October Mr. Hinote left his Max Mendoza: That’s Corville and that’s go he approached house to work. As on the left. car, he shot times a five with .22 Okay. Huh? There’s another King: rifle. Mr. Hinote was caliber struck twice go you? one. Want me to with right knee, leg,
in the in the once left once Mendoza: Nah. abdomen and once the hand. Mr. right, (unintelligible) All Mendoza: Hinote was able crawl back to the house. f_’ law, Roland, on a Max: Call the ambulance, the police refinery An a g_d_threat with knife. were called. bullets were removed at I Yeah. can’t ... Mendoza: Hospital, Mid-County and Mr. Hinote was f_, your I Mother could’ve cut Max: He placed intensive care. was released that. g_d_throat if I’d wanted do hospital approximately from the two weeks enough was close You later. you I know close. Mendoza: appellants’ first witness was William mouth, I’m a little loud but Max: Crabtree, personnel-employee R. rela- f_physically radical. manager Refinery. at the He testi- tions Well, Max, you know ... Mendoza: every stoppage in the Port fied that work s_, appreciate that Ro- Max: I don’t familiar Arthur with which area land. accompanied by some of violent Max, Well, no I don’t want Mendoza: accompanied activity. The violence which hostility I out here and ... February 1, stoppage began on this work hostility either. security Max: I don’t want of a ve- when window 4th, scabby mother f- bring that February a Don’t hicle was shot out. On you you okay. Okay, just with when You want Mendoza: I come come. out me, by yourself. here be friends. talk to come I’d Max: love him to walk the street. Look, Mendoza: Chester had called me. F_ I feelings Mendoza: don’t have no hard Max: Chester. Max, you, not whatsoever. I Mendoza: So had come here and I down problem. didn’t know if there awas And Roland, bring scabby Max: don’t son of
Max: I do not to see you want b_with you. a out here. supposed Mendoza: He ain’t to come on Well, Max, I, Mendoza: I for the come the line. picket line. No. It was a line Well, here, keep Max: him out of Roland. me. I called wasn’t out here for Well, Just like I I you, okay, okay. trouble. told come Mendoza: s_Now just out here talk. IMax: don’t need this f_’ f_’ my name, got my phone law’s go sergeant, g_d_ Max: You f_’ my number and address which detective and no account down f_’ you had to start ’cause with done told They got name, my here. which me, They I them who was. asked they already you had because know my lying, there was no I point so who I am. f_’ I sergeant, told them. I had the Yah, Mendoza: I do. p_him done off. standing cleaning my Max: I’m here my gosh. Mendoza: Oh g_d_finger get your you nails'and said, f_you Max: “What doin’ *5 finger pointed. If to I’d wanted stick here, your g_d_ down we don’t need Roland, you, I’d a stuck I you. don’t a_He said, got red a —” He’s you. want to stick I’d like to stick the , you jail.” “I can I you take know f_that standing mother was next to can. That’s the don’t beside —I need you. b_ ugly to see that Okay, well, Mendoza: Max just Okay. try Mendoza: I to make s_to more, Max: Don’t do that nome Max, peace, I don’t come out here to Roland. willing stir —I was walk off if it Mendoza: I took it as a Don’t threat. here, you being irritated me but I was me. threaten tryin’ to find out f_’ Max: no If I ain’t threat. Roland, (unintelligible) I am Max: a_ I’ll you, drag your threaten out a_ red f_’ here in I’ll street and kick I, story All sides of the Mendoza: before ’ your g d cause I think I’m I capable it. of a_I’m Queers like that the red Max: Mendoza: Well try antagonize gonna I to. If can f_’ big Max: and this mother next to them, good, that’s that’s what I’m b_out you, bring this son don’t here for. you here no more. If to come want Okay, okay. night, Good Mendoza: Max. s_and out here and shoot the be a you Between I Max: guy nice Okay, Mendoza: Max. Mendoza: Now wait a minute right. That’s all Max: by yourself, Max: Come Roland. Okay. Mendoza: f_’ faggot bring Don’t Max: out here. I son of a Max: don’t want see them b_, night. Good Roland. Mendoza: Okay. Okay. I mean Mendoza: didn’t long Not after this al- harm, I just come out here talk. Mr. tercation was Hildabridle elected Vice- f_in Amdel, cut his half. Chairman of the group Max: will mother Inc. threats, for cross- and intimidation sec- coercion Local 4-23. The Vice-Chairman picket line. Amdel, ing the highest position in Inc. ond division of union. on June line Corbello crossed that, after tension Immediately 1982. Hildabridle, testified, Appellee, Max increased. He testified and intimidation purpose at times his to intimidate his day he and wife started that the next just antagonize, as he had done his con- harassing receiving telephone calls. He with Hil- versation Roland Mendoza. Mr. times a home two three was followed dabridle stated that Mr. Hinote was a July, two vehicles fol- Sometime week. up.” Af- “scab” and that “scabs fire him home. When he lowed Mr. Corbello by ter he was fired because of the Fina house, the vehicles turned reached his incident, by he Un- paid Mendoza his stopped the end of drive- around and at through February ion Decem- men him he was way. One of the told in- ber of 1986. The Union also voted to if helping the union’s cause and that he Mr. crease dues five dollars a month for would, caught he “slit his Corbello town defense The Union ne- Hildabridle’s fund. spine.” his Mr. throat Cor- [Corbello’s] gotiated company amnesty with for for the. house wife had come out bello’s people all who involved then and stood behind him. She also testi- violence, including related strike Mr. Hilda- The man in fied about the conversation. bridle, part settling contract the car was identified as Max Hildabridle. company strike. The refused. Union Mr. This is the same threat Hildabridle firing then company sued the Hil- Mr. “I will made Mr. Mendoza when said paid $39,000 dabridle and him while the f_in [King] mother half ... I’d cut pending. case was him love to walk the streets.” addition threat, tires were Corbello’s pavement Tacks were strewn car’s slashed and his rear window was bro- refinery the gates of the at least sixteen ken with a brick. The windows of his during the strike. inci- times Numerous also broken. house gate taped. dents at the were video On appellee Lynch, one Ray occasion the un- Ray Lynch, chaplain, Appellee the union chaplain, taped throwing ion’s nails *6 newspaper regarding a to a letter wrote gate. tacks in front the On another Mr. strike after Hinote was shot. His the taped occasion a union member was slash- part as follows: letter stated During a picket, tire. a mass beer was Hinote; refinery for he hired in at the As persons exiting entering thrown at the twenty-four years I year the did same refinery. Mr. the Crabtree blamed continu- ago. I considered him an arm never stated, ous on the He violence union. though rarely participated licker even he significant effort, “Had there been a it [the quite I sur- in union activities and was continually wouldn’t have oc- violence] that prised and even shocked to learn he 20,1982 July curred.” On of a window I crossing picket line. don’t was replacement by worker’s car was broken a union man who shot him believe it was staying company he in a bricks while was though there a lot in the butt even are apartment. it like to have done for us who would good by because of what he did reasons person picket first line cross crossing picket own line. his Mr. was Mr. Carroll Corbello. Corbello admitted into evidence and This letter was probationary since em- employee was still a jury. read to the refinery ployees who at the have worked picket less than six months cannot become a mem- line Emery Fontenot crossed time September of the union. was the first 1982. Fontenot testified ber anyone picket approximately ever line at the fifteen members had crossed a crossing, responsible for the refinery. Fina Before Corbello were violence union leaders or those fifteen were Mr. Mr. Crabtree that some of met with Crabtree. fa- union. Mr. Fontenot’s subjected to him that he would be officers warned Soliz, employee. Page, ther was a retired Fina When ert Glenn Gonsoulin and Lee Latimer, together up Fontenot told his father of his decision to with Bert showed at line, picket being cross the his cried picket unexpectedly. They father line talked concerned Mr. welfare of Fonte- picketers to the three scheduled about Mr. not’s Mr. children. Fontenot discussed the crossing line picket Hinote’s when Mr. problem people previous other had had “Something going Gonsoulin stated: years they picket after crossed line at happen to him About four or [Hinote].” other refineries. later, group minutes five left. Not left, long they after Hinote’s home by Mr. Fontenot was also home followed ballbearings. with rocks and struck Mr. Gribnau, and other Don Lee Soliz Whitley also it im- testified was his on many union Mr. members occasions. pression that these men would be the opinion Fontenot testified that his would who break Mr. Hinote’s windows or being strike was handled “irresponsibly him up. beat irresponsible people” people and that being following “intimidated” into the un- Neeb, member, a Union Gerald testified representatives negoti- ion evening that he hall the the Union ations. Mr. Fontenot re- further testified Mr. He before Hinote was shot. went into garding a conversation he had had with Captain’s pick up the Picket room to appellee Lee Soliz as follows: check strike and heard Mr. Hinote’s name said,
A I too bad Bill didn’t Hinote have testimony regarding mentioned. Neeb’s gun. to use a chance And the conversation was as follows: rather uncommittal the Hinote about say they A heard someone couldn’t shooting. He never acknowl- would why nothing hap- understand had edge that it was done the Union pened yet. to Hinote membership. Q Okay. group So this of folks was Q Deny it? concerned, or at least said Well, A he didn’t. He tell me couldn’t why nothing couldn’t understand said, just who shot him. He “there is happened you Did Hinote. hear way knowing was some- that it Gonsoulin make comment? body in the him.” I local that shot spoken A After I had to Grado a little “Well, said, maybe not, we because while, yes. say it, can’t did who but we know Q He said what? now, right standing here, both of us something A He said —I said about I why was and done it it was a_He said, had the red “You think prevent crossing people other a_I you have the red have it bad. returning line Something going happen to- said, “Well, you possi- He work.” night.” *7 bly right could be that. about said, Q “Something Glenn Gonsoulin is possibility.” (Emphasis a That’s going tonight?” to happen added). A Yes sir. Mrs. Diane Fontenot also She testified. morning. Hinote the next Mr. was shot
stated that she received constant threaten- ing telephone calls. one She identified of He Mr. Gonsoulin also testified. never and, appellee the on callers as Don Gribnau making although denied the statements he occasion, stated, my one the “that caller According he could not remember. to said going husband to be man.” was a dead testimony, Page, appellees his he and Soliz company The a call switchboard received called The and Cross were at a Silver bar stating, “Fontenot is next.” p.m. Spur Septem- on seven to eleven 26, contrary, picket 1982. To the the Jimmy Whitley, also a mem- ber
Mr. Union ber, Page September log Sunday, testified that on showed Mr. someone 26, picket picket on at line at duty. 1982 he was Sometime else were the nine o’clock Cross, eight p.m. p.m. September after John Rob- on 26. Gonsou- shot, groups. Appellees morning Mr. also viewed
On Mr. Hinote was the together lin, Page, and Cross were hunting another Un- Soliz Gonsoulin went with bom- member, night Hinote home was ion He testified that the that the Joe Cowart. 30, right by September Hinote’s On two he Mr. home with rocks. drove barded gunned camouflage being and armed days prior dressed clothes Mr. Hinote’s to verify .22 guns. down, with No one the time could an incident when there was plant. arrived at their destination. weapon fired outside caliber was gun used to This the same of was shooting, Hinote contin- After Mrs. reported shoot Hinote. incident Mr. harassing phone ued receive calls. to report Hinote security as the in the same the residence of These calls were traced to shooting. appellee Don Gribnau. Gribnau’s car was driving by also witnessed Hinote’s apparent that the Union ratified also On oc- home on numerous occasions. one was defined the violent acts. Ratification security guards casion he called one of the as follows: derogatory at the Hinote home a name. adoption, “RATIFICATION” means the prior repudiate failure confirmation or to Bruno Hi- Ms. Gwen worked with Mrs. legally which were not unlawful acts note the store. that she She testified had the binding at a time when the Union a call intended for Mrs. Hinote received right knowledge necessary after Hinote had The facts Mr. been shot. caller which, conduct; stated, good job repudiate by such very “We didn’t do a but husband, your by repudiate, you but we make sure ratification or failure will (Emphasis added) Union.” are next.” She also tes- become the acts defendant very tified the caller was abusive and The aware of the acts Mr. Union was phrase scabby used the f_” mother “Yellow this, spite In elect- Hildabridle. several times. She listened to the The ed Vice Union Chairman Union. tape of the conversation between Max Hil- discipline any also failed to take action and Roland dabridle Mendoza identi- perpe- they knew were whom members fied that of the voice caller as Max negotiated trating the violence. Union Hildabridle. amnesty. grant The letter written them Lynch, chaplain, Mr. the Union indicated 1982, In November eleven months after shooting. approval of the Mr. the Union’s began, stoppage strike ended. work out after Hinote kicked of the Union brought charges against The Union Mr. hand, shooting. On the other the Un- line, crossing Hinote for and he support ion Mr. Hildabridle continued out of was kicked the Union. despite continued behavior. violent There is an abundance evidence articles 5207a and Tex.Rev.Civ.Stat.Ann. jury’s spe- entire verdict. right 5154a to work Texas. address cial No. found issue that the 5207a, provides: Article § negligent Local 4-23 in its O.C.A.W. right of person work inherent discipline “to members and take failure its freely employer bargain with his ... properly action to deter violence or control law, infringed by denied or shall not be activity manage the strike related dur- organization of whatever na- stoppage.” the work Crabtree’s ture. finding. testimony supports this 5154a, provides, part, as fol- Article § against The same acts were directed *8 lows: against directed Carroll Corbello were man, working The Unionist or non-Union- Hinote. The evidence demon- and Mrs. right ist, protected. The must be appellees each of the seven strated right (Emphasis to live. work is the continually in the violence involved were added). conspiracy The surrounding the strike. found that the jury is that the obvious supported by the fact that the theory is incidents, in- these violent Union ratified telephone continually callers referred to cluding shooting, thus as re- and was appellees as “we.” The were themselves 142
sponsible for them as also in Vasquez were individual addressed as appellees. only These follows: acts not violated Mr. work, right
Hinote’s but also almost Although a trial court have some right fashioning violated his to live.. discretion in the relief to be granted by injunction, hold that we Bannworths, Inc., In Vasquez v. 707 5154g, article section 4 limits that discre- (Tex.1986), Supreme S.W.2d the Texas remedy by requiring tion de- Right Court addressed Art. 5154 and the vised one which will be undo the effects found, Vasquez Work statute. Mrs. long of violations of the Act.... As by jury, to have fired of her because sought “fairly the relief inferable” membership. union The court found the pleadings, from the the court should de- purpose of the statute to be as follows: sign remedy based on the relief policies prevent Those are to unlawful sought, poli- which will effectuate the retaliation and discrimination because cies of the Act. membership non-membership or in a un- Appellants alleged of dam ion, protect employees and to inithe exer- ages petition. damages their The right cise of their join of free choice to sought Vasquez. were consistent with join Vasquez, a labor union. They were such as would undo the effects S.W.2d 888. policies the violation and effectuate the Consequently, a company prevent could not They sought recovery of the Act. for the employee working an from because of her injuries shooting. from a brutal received membership. union principle This same jury found the Union and the individu applied should be to the unions. It would appellees prevented al Mr. Hinote from employer be inconsistent to hold an liable working by causing physical injury. him discharging employee an because of The statute makes the violators of the Act union membership and not a Union hold resulting damages. liable for all Since physically mentally prevent- liable for involved, physical injuries are a tort actioh employee an picket who crosses a line policies results. This effectuates the of the working. was also instruct- by holding act the Union and the individual unincorporated ed that the Union was an appellees damages they accountable for the Therefore, violating right Mr. Hinote’s qualified association. the Union caused organization as an under article 5207a. work. Special Issue Number found Appellants also recovered for the
that the Union and the individual intentional infliction of emotional distress conspired deny “right Mr. Hiñóte his and for assault. There is an abundance of accomplished by causing work.” This was evidence to these claims such as him bodily injury. calls, shots, telephone sling the use of breaking Appellees appel claim of the windows that there is no cause of house, hanging dummy, lant’s of a “right action in tort for a violation throwing weight of the dead man and the 5154g, work.” § Tex.Rev.Civ.Stat.Ann. shooting. Similar acts were directed states as follows: against Mr. Corbello when he crossed the Any person, organization or association line. The correlation between provisions of this who violates against clearly indicates actions the two person Act shall be liable to the suffer- appel- individual that the Union and these resulting damages ing therefrom for all responsible lees for these acts. There person subjected and the to strike or finding support every evidence to made picketing given in violation of this Act is jury. Consequently, the trial court’s right wrong of action to redress such granting judgment order n.o.v. must be relief, damage, including injunctive overturned. District Courts this State shall n.o.v., grant judgment the trial grant injunctive relief when a violation of To there was no evidence appear. this Act is made to court must find that
143
require
would
a
Ratification
to
the verdict.
when
documentation.
support
Likewise
knowledge of
and a subse-
by
ap-
the event
point
“no
is
an
both
evidence”
sustained
repudiate.
court,
judg-
or failure to
pellate
duty
acquiescence
it has a
to render
quent
met if
higher
of the
standard need not be
appellant.
ment
in favor
Vista This
met. The
Chevrolet,
Lewis,
176
Inc. v.
709 S.W.2d
the second or third test
either
test,
(Tex.1986);
Accident
third
only
National
on the
jury
instructed
Life
Company
ample
v.
438 S.W.2d
evi-
Blagg,
Insurance
There is
of ratification.
(Tex.1969).
trial
Conversely,
905
when the
finding
that the Union
support
to
dence
finding to re-
court made a “no evidence”
to
the violent
repudiate
or failed
ratified
court
ject
jury’s
appellate
Therefore,
verdict and the
a
it
of its members.
activities
verdict,
judg-
to
finds evidence
on the
proper
instruct
rendered in
of the
ment must be
favor
preponderance of the evi-
of the
standard
appellant.
granting
judgment
n.o.v.
dence.
reversed,
and the
is reinstat-
verdict
case, ap-
if this
not the
were
Even
ed in full.
fifty, fif
through
pellees' cross-points one
bring
points.
Appellees
seventy-one cross
sixty
through
ty-two
fifty-eight
allege
They
preponderance
that the
over
through sixty-seven
still be
would
preempted
here
evidence standard
charge
objections
ruled
their
because
(NLGA),
LaGuardia
29
Norris
Act
Appellees’ objections to
waived.
were
(1982).
through
U.S.C.
115
§§
thirty pages of the record.
covered
states as
NLGA 106
follows:
§
issue, every
objected
every
They
special
Responsibility Officers and Members
except
charge as a
one and the
instruction
Organizations
or
of Associations
their
is
They objected
every special
whole.
Officers,
Acts of
for Unlawful
Individual
insufficiency
grounds
on the
of factual
sue
Agents.
Members and
against
great
issues
and that the
were
any
officer or
associa-
No
member of
weight
preponderance
of the evidence.
organization,
tion or
and no association
spurious
are
and unfound
objections
These
organization
or
or inter-
participating
insufficiency of the evidence
ed. Factual
dispute,
in a
held
ested
labor
shall be
no basis
the refusal
submit
furnishes
responsible
or liable in
of the
court
LaMark,
v.
366 S.W.2d
an issue. Strauss
United States for the
acts of
unlawful
(Tex.1963);
v.
Imperial
Co.
Insurance
officers, members,
individual
or
(Tex.Civ.App.—
Ellington,
shall be
objecting
untenable. No
to the
lack of evidence and
part
charge may
adopted
one
of the
insufficiency
be
of
evidence and
by
applied
any
a reference and
other
against
greater
prepon-
weight
and
part
charge by
only.
reference
of
derance of the evidence as to each
added).
(Emphasis
well, your
these
honor.
defendants as
I understand.
Mfg.,
Clarostat
Inc. v. Alcor Avia
In
The Court:
tion, Inc., 544
(Tex.Civ.App.—
S.W.2d
If
we could have that
Mr. Crouch:
n.r.e.),
San Antonio
writ ref'd
here,
go through
I won’t have to
it.
ficiency were as follows:
274 had been violated.
lant’s
mission of
court refused to consider
appellant
MR. CROUCH:
Further,
in this record to warrant
jury;
suffered
evidence in
sion of
dants
jury for the reason
Mr.
firmatively
sion of
tion of
Hinote.
objections
appellees’
special
Hinote that the
deprived
made stock
and, further,
except
special
special
injuries alleged
special
there is insufficient evidence
Conversely,
issue number one is
Special
shows
this record of the
objections on
to the
Mr. Hinote.
right
and
of was his
issue number one to the
issues. The
issue number
objections
object
by
charge
Issue No. 1: Defen-
that the submission
to work from Bill
only thing
any
the evidence af-
ability
to the submis-
to have been
factual insuf-
testimony
because rule
the submis-
there is
to the sub
appellate
depriva-
to work
against
that he
to the
appel
tual
held as follows:
denied),
An
but also
issue and for each of the
special issues is as follows:
object
(Tex.App.
(Emphasis
respects.
profuse.
Defendants
“Appellant
Mr. Crouch: thirty-three
example
ject
jection
First,
number four for the
insufficiency grounds
filled the record with
Smith v.
Court:
insufficiency
to the submission of
— Houston
every special
every sub-part
with
added).
(Citations omitted)
appellant
First,
of this objection to
violated
running exception
issue
All
Christley,
respect
right.
Not
[14th Dist.]
of evidence.
charge. My
objections
issue on this
to lack of evidence
following
only
eight
rule
fifteen times on
the evidence. me, The COURT: Excuse Mr. Crouch. Appellees’ objections here are even more Now, (sic) your going to have that profuse spurious Smith. than those objection everything? They are almost too numerous to count. object Mr. Crouch: I all of them Applying Can sub-part every them to each at one time? impossible issue an creates situation. The Yes, A, B, and C and— spurious objections, most of all of the fac- The Court: insufficiency, incorporated by tual ref- Judge, those are boiler Mr. Crouch: through “running” objection in plate objections going erence I am violation of rule 274. If make them to all of them. just court will let me do that at one very This case demonstrates time, skip I can a lot of this. purpose for which rule 274 was made. right.
The Court: That’s all protect appellate was to court from right. Mr. Crouch: All having judicial by wading time to waste It continued later: through spurious countless and unwarrant Honor, objections. gun” ed This tactic of “shot Your ask would Crouch: objections impetus to the was the the court to take note that in each of adoption appel- multi-part these where there are an- for the of rule 274 and the this, excepting objections flagrant swers like I am lees’ are a and extreme bit, now we are go a little A. To back Cross-points one violation of rule. knee; is that the left dealing just with through fifty-eight through fifty, fifty-two *11 right? through sixty-seven are sixty waived far as I and overruled. as part, yes, Complaining A. am concerned. 51, appellees cross-point In number he hospital, Q. got he out of the After or, no in the alterna claim there is evidence problems with to have continued tive, support the insufficient evidence to knee; right? is that left jury’s finding of future medical costs. Dr. much. complain too A. No. He doesn’t Hinote in the Mamoru Fukuda treated Mr. your records note— Q. do When morning emergency room on the up back show came A. Records —he bullets, shooting. Dr. Fukuda removed the in '84. placed Mr. Hinote cleaned the wounds and Q. When? in care. After Mr. Hinote left the intensive 28th, Then he started February A. ’84. hospital, problems continued have squat complaining pain, particularly pen with his left knee. The bullet and climb. it, through joint the knee etrated went Q. regularly him after You followed ligament damage. April In of 1986 caused performed surgery you that until performed arthroscopic sur Dr. Fukuda 1986; right? is that gery on Mr. Hinote’s left knee because of Almost, problems. yes. The doctor as I off sick be- his continued A. time; percent disability yes. cribed a 30 to 50 to the tween shooting. Fuku- knee as a result of the Dr. period Q. off sick for a dur- You were testimony regarding problems da’s future him to you referred there which was as follows: Shuffield, believe; right? I is that Dr.
Q. Yes, come and talk about We will back sir. A. nutshell,
that in a little bit. But in a knee, you Q. respect to his left With prob- what had been nature of might problems down the it cause said and, hospitalization lem after the initial prob- If he continues to have road. hopefully, healing injuries? of his would, gunshot to this lems related you do next? what do Well, foreign body, A. after removal of concerned, I’m left knee is up replace- far as total knee Probably A. end the most troublesome because of—he ment. starting degenerative changes replace- Q. you say a “total knee When joint. left knee ment,” explain to the what that is. arthroscopic surgery. He made a did false teeth. A. It’s like good recovery. However sorry? Q. I am cause trouble in the future. Other- like false teeth. A. It’s wise, appears okay. it to be Is that what Q. it like false teeth? Is Q. you say ‘may cause trouble When saying? you are future,’ you by that? what do mean knee. A. False Arthritis, getting
A. worse. put in a false knee? Q. just You would Q. Does he have what we call “traumat- right. That’s A.
ic arthritis?” joint? Q. plastic It is likely, yes. A. Most joint. plastic A. Make Q. something arthri- long Tell the what “traumatic Q. Do we know how might
tis” is. last? like that know. A. We don’t Injuries to the articular surface A. causing arthritis. joint major surgical op- Q. in itself a Is that which— eration? arthritis re-
Q. your opinion, is that Yes, sir. gunshot A.
lated to wound? Q. long hospi- to admit evi How does one have to be There was valid reason replace- acquittal. Cambridge
talized to have a total knee
dence of the
Britt v.
ment?
Company, 717
Mutual Fire Insurance
Antonio, 1986,
(Tex.App.-San
couple
A. A
to a
S.W.2d 476
week
weeks.
n.r.e.).
writ refused
The decision to ex
Q.
the doctor’s fees for
What would
proper
clude the
and not arbi
thing
evidence was
you
such a
if
had to do it.
be
trary or
Cross-point
unreasonable.
number
$2,500.
A. About
sixty-eight is overruled.
evidence
sufficient to
finding
Appellees’
of future medical costs.
is also contended that the trial
*12
fifty-first cross-point is overruled.
admitting pieces
court
of a .22
erred
fifty-ninth
ap-
In
cross-point,
their
caliber rifle found
law enforcement offi
pellees
damage
claim
punitive
the
Appellees
cers.
claim that there is
evi
against
is
individually
award which
them
is
weapon
dence which connects the
to Mr.
supported by
damage finding
not
an actual
Blanchard,
injuries.
Hinote’s
Mr. Calise
damage questions
because the actual
do
deputy assigned
the sheriff's
the Hinote
damage
among
apportion
the
amounts
shooting,
from
received information
crime
basically
objec
the defendants. This
is an
knowledge
stoppers that someone had
above,
charge.
tion to the
As set forth
all
gun
the
used to shoot Mr. Hinote. The
cross-points regarding
charge
the
have
stoppers
crime
information led to the dis
point
been waived. This
is also waived
covery
weapon
of the .22 caliber rifle. The
appellees
object
the
because
failed to
the
found
of the
was
Officer Blanchard
ground
on this
or
an issue
submit
believed was used
shoot Mr. Hinote.
comparative
on
causation. Absent such an
enough
This evidence was
to connect the
issue,
damages
the actual
are attributable
Therefore,
shooting.
rifle to the
it was not
to all the
since
were all
unreasonable
admit such evidence.
responsible
injuries.
found
for Mr. Hinote’s
sixty-nine
Cross-point number
is overruled.
Cross-point
fifty-nine
number
is overruled.
point
seventy, appellees
In cross
number
sixty-eight,
cross-points
sixty-nine
In
and
tape
claim it was error to introduce the
seventy, appellees claim the court
erred
recording
King/Mendoza
incident.
admitting
excluding
or
certain items of evi-
Seymour
Gillespie,
In
Some of these elements be seventy-first cross- (Tex.1984). Appellees’ ex- need not be shown in detail. For point is overruled. ample, person if a hears and records conversation or hears a conversation and reversed and judgment conversation, recording testified reinstated. verdict recording representation, it can be is a fair capable recording inferred the device was Justice, ELLIS, dissenting. taking testimony operator and the majority’s respectfully dissent from the voluntary competent. The nature of the reviewing trial opinion. whether the inferred from the conversation be notwithstanding the ver- judgment court’s facts and circumstances of each case. proper, must the evidence dict was we view tape Mr. Mendoza testified that appellants at trial in favor of admitted recording a true and correct upon is no evidence determine that there Therefore, it can inferred conversation. be appel- found for which the could have tape capable that the recorder of tak Quinn, Corp. 726 S.W.2d lants. Exxon v. ing testimony compe and Mr. Mendoza was (Tex.1987). trial I would affirm the operate the recorder. The facts tent is no evi- judgment court’s because there *13 in that Mr. was not establish Hildabridle connecting 4-23 and actually Local dence to elicit of the information con duced acts individual to the the seven fact, recording. in the In Mr. Hilda- tained proof complained byof the Hinotes. While bridle asked Mr. Mendoza to come out to conspiracy, particular, may be made of a picket-line to talk him. The voices evidence, vital facts circumstantial tape were identified. The was transcribed proved by inferences not be unreasonable given police. only The FINA and to the and circumstances nor from other facts change portion was a small blank which by piling may a vital fact be established accidently police. The erased upon Schlumberger inference. inference tape complete rest of the is a record of the Corp. v. Nortex Oil and Surveying Well requirements conversation. The were met. 854, (Tex.1968). Corp., 435 S.W.2d Gas Cross-point seventy is number overruled. cross-point seventy-one, In number
appellees claim the trial court heard which granting
the first trial erred in the Hinotes’
motion for new trial. We do not have
jurisdiction point. Conley to hear this In v.
Pompa, (Tex.App. Corpus 627 S.W.2d — CAULLEY, Appellant, 1982, writ) Robert A. Christi the court presented with an identical situation. v. Conley, plaintiff Conley sued Dr. CAULLEY, Appellee. Ruth trial, malpractice. the court In the first No. A14-88-286-CV. special to the issues found answers conflicting granted trial. new Appeals of Court of Texas plaintiff obtained a favorable verdict , (14th Dist.). Houston appealed trial. The doctor the second 17, Aug. 1989. granting the new tri claiming error follows, “An Conley al. The court held as Rehearing Sept. Denied 1989. granting new trial is an interlocu order authority order, statutory tory and absent cannot act on such this Court [sic]
[sic] Conley 627 appeal.” omitted] [citation has Supreme Court
S.W.2d at 513. granting a new trial
also held that orders appeal. v. Cummins
are not reviewable