*3 BUTTS, and Before PEEPLES HARDBERGER, JJ.
HARDBERGER, Justice. compen- This is a non-subscriber worker’s injured Grady Hornsby sation case in which unloading weigh- his back a reel of cable wire ing approximately pounds from his truck. corporate employer The found the and negligent trial two individuals and the court judgment Hornsby. Appellants entered legal sufficiency points raise 14 and factual below, error. For the reasons stated we judgment. affirm the trial court
Background injured working his back while manager
a technical for a television cable company. installation His did not belt, provide weight-lifting dolly, him a type equipment him in other to assist pickup. a reel of cable wire out of his any help did not ask for to unload injured Hornsby severely the cable reel. undergone oper- and two back back has since ations. He has not worked since the date of compensation the accident. No worker’s cov- injury. Hornsby erage existed for the sued on several entities and individuals several grounds, including “em- were his ployers” through negligence their had injury. jury agreed. caused his judgment trial court entered based on jury’s finding in the amount $103,- $594,000,plus pre-judgment interest employer corporation, and 795.40. The against great capaci- weight and Leitch in their individual is so Crews ties, jointly severally preponderance were found of the evidence as to be mani- Co., judgment. appeal festly unjust. Pool Ford Motor (Tex.1986); Bain, Cain v. Insufficiency
Legal (Tex.1986); King’s In re Estate, 662, 664-65, 150 Tex. Appellants raise seven “no evi (1951). considering great weight “[I]n points asserting complete dence” of error jury’s points complaining of a failure find a lack of evidence on each issue. See Raw fact, appeals courts of should be mindful that Gas, Exploration Hide Oil & Inc. v. Maxus by preponderance was not convinced Co., (Tex.App.-Amarillo Herbert, of evidence.” Herbert v. denied). reviewing writ “no evi (Tex.1988). 141, 144 Reversal is warranted *4 points, only dence” we consider the evidence only detailing that if a of the evidence shows support and inferences that tend to the find great weight supports a the of the evidence disregard ing, and all evidence and infer different answer. Id. Weirich, contrary. ences to the v. Weirich (Tex.1992). 942, If 945 there is not, not, may will This court and sub probative support evidence of force to jury if judgment stitute for that of the the its finding, point the the must be overruled and challenged finding supported by evi is some finding upheld. the Southern States against probative value and is not dence State, 639, Transp., Inc. v. great weight preponderance of the and (Tex.1989). Thus, if the record contains Alford, Meroney & evidence. See Co. support more than a scintilla of evidence to Rowe, (Tex.Civ.App.- finding, challenge the no evidence fails. n.r.e.). Amarillo writ ref'd (Tex. Stafford, Stafford 1987). appellate an On those occasions when insufficiency, for factual court reverses ease Insufficiency Factual Company requires that Pool v. Ford Motor Likewise, appellants raise the same seven we “detail the evidence relevant to the issue consideration, clearly why points as “insufficient evidence” of er- in ... state issues sufficiency points finding factually “Factual of error con- or ... jury’s ror. is insufficient issue, conflicting yet great weight preponderance cede evidence on an and against the evidence, against jury’s regard maintain the evidence state what [and] of the finding contrary outweighs great greatly is so as to make the evidence Gas, support erroneous.” Raw Hide Oil & Inc. v. of the Pool v. evidence verdict.” Co., Co., Exploration at 275. Maxus Ford Motor evidence, important Although it detailing the is Pool does extend this Before jury analysis that this court is not num- level of on these to remember affirmances court, grounds, this if it were the mention evidence we consid ber two. Whether we will factfinder, jury’s support one verdict. original would have found for er sufficient jury in A side or the other is immaterial. are “the Simple great power. state has Jurors Tool Rule judges credibility of the witnesses sole four, through appellants In one points weight given to be to their testimo- jury’s finding claim that the 226a, ny.” approved instruction Tex.R.Civ.P. (a) factually because legally insufficient tampered III. Their decision is not to be furnishing they responsible were not plaintiff or lightly, it favors the
with
whether
employee, with' sim
Hornsby,
experienced
has,
and should
the defendant.
(b)
tools,
it is
custom the
ple
not the
have, the final
on facts.
word
lift
industry
furnish cable installers with
“simple
rule” relieves an
tool
supreme
has stated the
belts. The
court
if that
duty
inspect a tool
employer of the
by which we review a factual suffi
standard
control and
tool is committed to the exclusive
ciency point: we assess all the evidence and
employee,
is of such a charac-
only
challenged
care of the
for a
trial
if the
reverse
new
evidence
had re
it
There was
ter that the
who handles
should
provide the in
City
requested Leiteh to
fully acquainted
peatedly
with its condition.
Howard,
dollies
with
belts and
Houston
stallation crew
testimony
(Tex.App.-Houston
writ de-
[14th Dist.]
and was turned down. While this
nied)
Larkin,
Gulf,
(citing
defendant,
& S.F.R. Co. v.
C.
contradicted
was
(1904)).
98 Tex.
82 S.W.
jury’s job
it.
It is the
was entitled to believe
testimony. They
conflicting
did
to resolve
rule,
agree
simple
tool
We
with
employer
They concluded that the
so.
applicable
but it is not
in this case.
It is a
failing
equip
negligent for
to furnish the
inspection,
rule of
not a rule on whether the
support
ment. There is some evidence to
employer
to furnish tools such
finding.
through
one
four are
Points
lift belts or dollies to the
as is the
overruled.
agree
appellee
ease here. We
with
that the
Oliver,
case of Harrison v.
The safe alternative fails an- Officer other reason. The found that points In and twelve the eleven individual Marketing was an of Pro Com appellants argue negligence, any, that their if Services, Inc. As Pro Com was a non-sub- nonfeasance for which amounted to mere cor- compensation scriber to the worker’s insur- porate personally could not be held officers ance, Pro Com does not have the common hable. Crews and Leitch were sued their contributory negligence law defenses capacities, individual their official ca- assumption of the risk. Points and six five pacities. alleged in Plaintiff his fifth amend- are overruled. original petition: ed injuries Proximate Cause September 1990 were proximately negligent con- caused plead prove Plaintiff must Defendants, Leitch, duct of these Russell proximate the defendant’s is the Marketing Hal Prom [sic] Com injury. cause of his Proximate cause must Services, Inc., ... in one or more of the (1) fact; two-pronged meet a test: cause following respects, to-wit: (2) foreseeability. Farley See v. M M Company, Cattle (1) Failing provide Plaintiff with safe ten, points through appel seven place, equipment, work rules and co- argue lants there was no evidence or alterna employees; tively Hornsby’s insufficient evidence that (2) inspect, Failing to oversee and other- lifting injury appel was foreseeable or that wise exercise some control over the facil- negligence, any, lants’ if was the cause fact on; operation being ities and worked Hornsby’s injury, thereby precluding (3) Failing provide inspector-over- negligence. inspect, oversee seer who would and oth- *6 foreseeability inju of back erwise exercise some control over the regular lifting in ries connection with the on; operation being facilities and worked heavy objects judged by must be a reason (4) Failing provide to Plaintiff with the person Corp. standard. See Exxon able objects proper equipment heavy to lift Roberts, 868, (Tex.App.-Tex 724 S.W.2d 867 gear and other related with the busi- n.r.e.). 1986, Testimony arkana writ ref'd ness; physician, upon treating from the based a history Hornsby medical taken from near (5) Failing provide pro- Plaintiff a to with injury, Hornsby’s time of the indicates medi lifting employees lifting tective belt for injury. symptoms lifting cal were related to a heavy objects protect persons a [sic] testified that he was the act of restraints; from such excessive back lifting injury the cable reel when the oc (6) Failing to warn the Plaintiff of the curred. There was also considerable testi dangerous activities in- conditions and/or mony had re that and Whidden work; performing volved in his quested lifting of Leitch and Crews that belts (7) with Failing provide the Plaintiff provided in order to ease the strain of competent co-employ- and trained well lifting heavy equipment. Whidden testified work; perform ees to his have that use of belts would eliminated injury. partially conflicting There was (8) provide Plaintiff with Failing to testimony degree that Dr. Geibel testi instructions, pro- safety guidelines, and safety necessarily pre fied that belts do properly safely perform cedures to lifting injuries. degree there vent To work; conflict, jury jury it. The was a resolved (9) any safety training Failing provide injury was entitled to conclude that this was job. of the pertaining to facet by negligent acts foreseeable and caused foregoing was a Each of the above and appellants or under the circum omissions ' injuries proximate suffered presented at trial. Points seven cause stances Plaintiff. through are overruled. ten
249 contract, 2, decep- Question jury for a breach of that or for No. was asked: contract, unless any, persons growing if tive act out of negligence, “Did the sepa- injuries DTPA or committed a proximately named below cause the he violated the question?” answered “Yes” as rate tort himself. Leitch, Pro Russell Hal Com instance, Deceptive For the Texas Services, Marketing as to Inc. and “No” Ca- Kelly Act case of Karl and Trade Practices Services, Employment Inc. ble Television McLerran, 174, Company, Inc. v. Grady Hornsby. (Tex.1983), dispute grew out of
Therefore,
corporation to which the indi-
contract with a
found that
Therefore,
parties.
agents were not
negli
vidual
guilty
both Leitch and Crews were
finding
ego
necessary for
of alter
liabili-
gence
proximately
injury.
caused
rule,
ty
agents individually.
to attach to the
Id.
general
corporate
As
officer
agent may
personally
In another DTPA case where the relation-
be held
liable for cor
parties
ship between the
arises out of con-
porate wrongdoing in which he is an active
tract,
agent
the court held that an
is not
participant
knowledge
or has
of the tortious
conduct,
corporation
hable for the acts of the
unless
Ley
either actual or constructive.
Assocs.,
Wechter,
wrongdoing
finding
there is a
of individual
endecker &
Inc. v.
(Tex.1984);
supported
pleadings and evidence. See
K&G Tool &
Wilson,
(Tex.1983)
Serv.,
Light v.
Inc. v. 453 1985, (Tex.App.-Houston 337 no [1st Dist.] Weingarten, In J. there was no find writ). ing particular agent or evidence that case, negligent. involved was In this there Leitch, Crews, corporation and the specific jury finding
was both evidence and a duty law not to in each had a under tort negligent that Leitch and Crews and were jure actively passively. respective Them or — negligence proximately that them caused the negative roles vis-a-vis invoke a Thus, injuries Weingar- question. in the J. duty quaintly somewhat labehed “misfea in the ten standards were met instant case. sance.” also, may long It in tort Misfeasance involve to some ex- has been law tent, doing; employee agent responsible or is the idea of not as where the law that an perfor- in may negligent agent, engaged while not for his own acts and be found undertaking, not do corporation for acts as is the under the mance of his does those duty theory respondeat something it to do superior. of This is not which circumstances, always in not take the case contract law because there under the —does duty precaution, of the is does not exercise the nature defined care, rights employee, regard An a for the contract itself. who is not which due contract, requires. party to the cannot be held hable others 250 Lane, 150,
Kenney
Tex.Civ.App.
Lastly, appellants argue
that Leitch and
S.W.
(1894,
put
negligent
To
it in
Crews were not
no
more
dele-
person
gated
responsibility
for
language,
negligent
modern
can be
cable installation
manager,
doing something just
Hornsby.
for not
to Pro Corn’s technical
as he can be
negligent
employer
This issue fails because an
doing something.
for
has
“nondelegable
duty
and continuous”
to an
cannot, by
leaving things
...
[H]e
provide adequate help
perfor-
to
condition,
dangerous
exempt
from
himself
assignment.
employ-
mance of his work
liability
any person
injury
to
who suffers
duty
provide
er
a similar
to
having
reason of his
so left them with-
tools,
with safe instrumentalities and
and to
proper safeguards.
out
This
not non-
is
provide
place
a safe
to work. Harrison v.
feasance,
doing nothing;
or
it
but
is mis-
Oliver,
(Tex.Civ.App.-
S.W.2d
feasance, doing improperly.
dism’d).
[1st
Houston
writ
An
Dist.]
Id. 36
at 1064.
S.W.
duty
provide
non-delegable
has a
regulations
safety
rules and
its
always
The law of Texas has
them,
employees
to warn
under certain
and
agent
been that when a servant or
once
conditions,
employ-
hazards of their
upon
performance
enters
of his duties for
Corp.,
ment.
Ghazali
Southland
principal,
or
his master
he owes
(Tex.App.-San
Antonio
negligence,
passive.
avoid
“whether active or
writ.)
no
negligence
begun
Passive
after the duties are
”
Hardy,
inis
law ‘misfeasance.’ Cornett v.
Perry,
Appellants’ reliance on Portlock v.
186,190 (Tex.Civ.App.-Beaumont
(Tex.App.-Dallas
writ
added).
writ)
(emphasis
denied), misplaced. That case does not
is
non-delegable duties to
involve an officer’s
certainly corporate
There are
company’s employees. The Portlock case
liability
acts that do not transfer
to the cor
officer,
Perry, a financial
did not
found that
porate
agent. But
officer and
the fact that a
day
participate
day
operations
in the
person
agent
provide
an officer
does
is
not
running
not
clinic
had
undertaken
liability. They may
personal
a shield from
policies
procedures
duty to institute
negligent
in their own acts. See
found
quality control of the clinic. Those duties
375; Mayflower
Leyendecker, 683
at
delegated
employees.
medical
were
Stephens,
Investment Co. v.
Perry’s
failing
to inform himself
omission
(Tex.Civ.App.-Dallas
ref'd
writ
policies
procedures did not
corporate
n.r.e.). They
If
were
this case.
there is
participation in the clinic
constitute direct
negligence,
individual
as the
found in
personnel’s negligence because he had no
case,
necessary
pierce
it
is
Perry,
affirmative
to act. Portlock v.
Only
corporate veil.
where the individual’s
There is evidence that
I with most of the fact liability is not relieved holding but dissent from the individ- from princi- at the command of the that he acted defendants, per- are ual Leitch and principal, except pal account of the or on sonally corporation’s liable for the failure exercising privilege where he is Corporate furnish belt. by him for the principal, privilege or a held employees individually lia- can now be held interests, ble, principal’s or protection of the apparently without common-law defens- es, duty equip- principal owes no or less failing for the tort of to furnish where the ment, though duty equip- duty person even to furnish than the normal of care to the belongs employer, ment to the not the indi- harmed. prove holding, vidual. failure to With Agency § (Second) Restatement of ego corporate nothing, means because alter (1958) added). agent (emphasis Thus an is individually subject liability employees are and duress liable for the torts of fraud make, they though for the decisions even (§ (§ 348), 348A), trespass to land and con- plaintiffs co-employees, individuals are the (§ 349), though even he committed version employer. majority actually The not his working principal. for the those torts while held that the individuals who work for a Concerning negligence, agent is company owe as individuals the same duties only of if he created an unreasonable risk owes, company if their actions even protected harm to a interest. Section individually.
would not be tortious if done
provides:
holding
unsupported by precedent,
This
is
if,
subject
liability
An
his
agent is
analysis
compensation
worker’s
stat-
acts,
an
risk of
he creates
unreasonable
ute,
by policy reasoning
kind.
protected
harm to the interests of others
corporation,
The
failed to find that the
against negligent invasion.
Com,
ego
Pro
was the alter
of Leitch and
Agency
§
(Second)
Restatement
They
Crews.
therefore are not liable for the
(1958).
corporation’s
ego theory.
torts on an alter
majority
they
But the
are
concludes
still
principles stated in the Restatement
liable,
individually
grounds
on
that I believe
Agency
For
are embodied
Texas law.
apply
point
do not
to this
case.
example,
agent
negligently
an
who
causes an
difference between us is that I do
think
individually
liable even
automobile accident
duty
Leitch and Crews owed
though
employer is also liable under re-
equipment. They
individuals
furnish
did
driver,
superior.
agent
spondeat
As a
Hornsby;
not contract with
he worked for
it
public,
owed a
of care
They
company,
not for them.
cannot
job
on the
makes no difference that he was
negligent individually for failure to furnish
hap
employer when the accident
for his
equipment
owed no individual pened. Similarly,
agent
an
who defames
equipment.
to furnish
employment is
in the course of his
someone
individually
Leyendecker & As
hable. See
It is true that an
can be liable
Wechter,
socs.
torts,
for his own
and for his own active or
agent may
personally
An
also be held
passive negligence,
though
even
he was on
misrepresentations.
See
liable for fraud
job
at the time. But
Johnson,
334, 336-38
Barclay v.
applies only
when the
this mle
*9
writ);
(Tex.App.-Houston
no
[1st Dist.]
is,
independent
committed an
tort —that
County
Wooldridge, 674
Duval
Ranch Co. v.
duty
injured per-
owed an
to the
individual
1984, no
(Tex.App.-Austin
S.W.2d
apart
employer’s duty and
son
the
from
duty.
that
breached
law,
exist,
agent
liability
the acts of the
agent’s
For individual
the
But under Texas
duty
a
to the
The
are not tortious
he owes
actions must themselves be tortious.
unless
agent
general
injured person.
if the
committed
Agency
of
states the
And
Restatement
tort,
independent
reading
Light
no
In a
A fair
he is not liable.
stated above.
of
case,
McLerran,
comparable
supreme
including
Spears’
the
court held a
concur-
Justice
grocery
Light,
Deceptive
that
in a
supervisor
personally
store
not
liable
rence
shows
case,
ego
Trade
Act
if
give
employee
for his failure to
an
instruc
Practices
even alter
is
established,
agent acting
princi-
not
an
for a
lifting.
Weingarten,
tions about
Inc.
See J.
(Tex.1970).
Moore,
pal may
individually
provided
be
liable
he
v.
449 S.W.2d
violated
DTPA himself.
the
Similarly, though
subject
a bank was
to lia
bility,
employees
its officers and
were not
Thus, agree
majority completely
I
with the
liable for actions
the course of them em
act,
that
an actor
a
when
commits
tortious
he
ployment
duty
which violated no individual
liability by
that
is
shielded from
the fact
injured party.
Maxey
the
See
v. Citizens
acting
corporation.
But un-
he was
the
Bank,
(Tex.
Nat’l
725-26
established,
ego
corporate agents
less alter
1974).
issue, Maxey
On this
the
court cited
personally
and officers are
for their
liable
approval
Edgewood Indep.
with
Russell v.
employ-
actions taken in the
of their
course
Dist.,
(Tex.Civ.
School
only
they
duty
ment
a
when
breached
n.r.e.).
App.-San
In
Antonio
writ ref'd
they
injured
owed as an individual to the
said,
long
Russell the court
“As
as Steinhau- person.
of the
As section 343
Restatement
agent]
acting
scope
ser
was
within the
of
[the
says,
agent’s
if
the
conduct is “otherwise
employment
superintendent
as a school
tort,”
liability” by
he is not “relieved from
personally
he cannot be held
hable in a tort
working
that he
for the
the mere fact
was
action, except in such cases which involve principal.
torts,
assault,
separate
individual and
such as
subject
negli
passive
and active
On
trespass, fraud or conversion.”
by
majority
gence, the eases cited
seem
The law
summarized in
was well
South
they
inapplicable
to me
because
involved an
Vollmer,
Telephone
western Bell
Co. v.
805 agent’s duty
protect
public
from
(Tex.App.-Corpus
Christi
dangerous
v.
known
conditions.
Cornett
denied):
1991, writ
Hardy,
(Tex.Civ.App.-Beau
duty
contract
When
is created
be
1951, writ),
and his
mont
no
a truck owner
party,
tween an
and a third
warning a
driver were held liable for not
employee
is not hable for the breach
dangerous
mechanic
condition of a
about
duty
is not a
because
they
tire rim
asked the mechanic to service.
party
Kelly
to the contract. See Karl &
The court said the driver could be held
McLerran,
174,175
v.
Co.
dangerous
of a known
for failure to warn
liable,
For an
to be held
condition,
might
“nonfea-
though
even
duty
employer is not
Lane,
a breach of the
to the
Kenney
Id. at 191-92. In
sance.”
enough;
separate
there must also be a
(1894,
Tex.Civ.App.
36 S.W.
duty owing
plaintiff.
breach of a
writ),
agent repairing
bridge
for its
an
Bank,
Maxey v. Citizens Nat’l
protective
had failed to install
board
owner
(Tex.1974).
722, 725-26
falling
ing
persons
from
met
to shield
below
agent argued
The
he was not
al rollers.
Hornsby’s
Leitch and
were not
em-
Crews
The court held that
liable for “nonfeasance.”
duty
ployers,
no individual
owed
nonfeasance,
agent
can be held liable for
necessary equipment to him. Pro
furnish
act,
duty
if he
of care to
or failure to
owes
duty
him
corporation owed
Com
duty
public.
spoke
The court
employ-
him.
it was Pro Com that hired
upon
agent
responsi
imposed
care
“as a
equipment to its-
er
to furnish
owes
individual, in
all other
ble
common with
employees. But the individuals involved
society.”
Id. at 1063.
members
owe
corporation
did not
individuals.
same
Hornsby’s
ego theory
resolved
alter
adversely
jury.
him
His other
supreme
opinions
Light
court’s
Wilson,
(Tex.1983),
liability
theory
personal
is invalid because
and Karl
When the next such case is with this precedent, case aas will the defen- individual stripped dants be of defenses under the Act simply corporate employer because the chose majority to be a subscriber? The makes potentially individually them for failure corporation’s to take action that was the responsibility.
I would hold that cannot recover defendants, from the individual and as to them I would reverse and render a take-
nothing judgment.
John W. BURFORD and Sue
Burford, Appellants
v. WILSON, Appellee. Lee HODGES, Hodges, James T. Dona J. Carolyn Heath, Appellants WILSON, Appellee. Lee Keith JONES and Brenda Jones, Appellants
Gail Wilson, Appellee. Lee Shirley Jessie PARKER and Parker, Appellants A. WILSON, Individually Lee Lee d/b/a Realty; Salyer, Wilson Ted V. Individu- ally Salyer and Wilson Con- d/b/a Company; Morgan struction Donald Salyer Salyer, Individually, and Lorene Appellees. Nos. 12-93-00276-CV to 12-93-00279-CV. Whitehurst, Tyler, appellants. Bob for Texas, Appeals
Court of Tyler. Hommel, Jr., Tyler, appel- William S. lees. Sept. 1994.
Rehearing Overruled Nov. 1994. HOLCOMB, Justice.
These four causes have been consolidated purpose opinion. for the of this