*1
stringent requirements
that the more
of an
Although may prove
commenced.
it
diffi-
affidavit for an arrest or search warrant
provide
cult under article 52 to
constitution-
required.
would be
safeguards,
presume
al
we will
that the
respondent
deny
will
the relator his due
law,
Under
federal
subpoenas
where
process
rights
constitutional
when the
have been
by
issued
an administrative
of Inquiry
Court
is held. Because the rela-
agency
requirements
and notice
have been
tor has
respondent
not shown that the
has
attacked, the United
Supreme
States
Court
clearly abused his discretion or violated a
has held
process
that the due
clause of the
duty imposed upon
law,
by
him
implicated
Fifth Amendment is not
because
adequate
because the relator has an
reme-
an
investigation adjudicates
administrative
law,
dy at
we hold that the relator is not
legal rights. Likewise,
the Court held
entitled to the relief he
prayed
has
for.
that the confrontation clause of the Sixth
Amendment is not offended because crimi-
staying
This Court’s order
the Court of
proceedings
nal
have not been initiated.
Inquiry hearing
hereby
aside,
is
set
and the
Jerry
O’Brien, Inc.,
S.E.C. v.
T.
467 U.S.
petition
relator’s
for mandamus is over-
735,
2720,
(1984).
104 S.Ct.
As in present case is an matter,
investigative pro- and no criminal
ceedings have been Similarly, initiated. Gholson, Wells it would seem that stringent
less requirements for an affidavit necessary.
would be especially This is so procedure
where the only investigative is
nature, and charges may criminal may or
not result. We conclude respon- TERMINIX, that the INC. and Terminix provides dent’s affidavit the relator International, Inc., Appellants, sufficient apprise notice to him scope inquiry to be made in the Court of RIGHT AWAY FOODS Inquiry respondent. ordered CORPORATION, INC., Finally, disagree we with relator Appellee. that article 52 is unconstitutional on its No. 13-87-549-CV. deprives face and process him of his due rights. A may statute be consistent with Texas, Appeals Court of process use, due but application, its Corpus Christi. construction, by applied in a manner 18, deny process. May that would due 1989. Smith v.
State, 164, 311 U.S. 61 S.Ct. 85 L.Ed. Rehearing Denied June 1989. (1940).
Although Supreme Court of the Unit- opinion
ed States in its memorandum State,
Martin v. 382 U.S. 86 S.Ct. (1965),
present Texas Inquiry Court of statute has
“grave questions by constitutional conduct-
ing proceedings,” opin- such we are questions
ion that the constitutional allud-
ed to that court if in will arise construction, usage
statute’s constitu- rights during proceedings
tional are not parties
afforded to the involved. At the time,
present Inquiry the Court of has not
yet proceedings convened and the have not
the evidence to establish Terminix’s liabili- ty, complaining proved that the evidence great weight a matter of law or *3 preponderance negligence that the of RAF Degesch contributed to dam- RAF’s ages, asking for a remittitur of the exemplary actual damages. We re- portion judgment verse of the award- ing damages exemplary and affirm the re- Hury, Hall, Charles W. McAllen, Atlas & mainder of the judgment. trial court’s Zuercher, Karen Thornton, Summers, L. through contracted with Terminix Dunham, Biechlin Antonio, San John Brewer, manager Jack of Terminix’s Har- Milano, Jr., Lynn Coleman, Antonio, E. San lingen office, fumigation job to do a at appellants. for processing plant McAllen, RAF’s food Gordon, Michael Buchanan, W. James F. Texas. RAF manufactures rations for the Kleberg Head, Corpus Christi, Dale, & Roy forces, representative armed and a Bilbie, Brownsville, Richard L. appellee. for United Air requested States Force phostoxin fumigation. be used for the NYE, C.J., Before and KENNEDY pesticide Phostoxin is a which comes in DORSEY, JJ. tablet form. When the tablets are left exposed in fumigated, the area to OPINION deadly gas emit a phosphine. called Brewer KENNEDY, testified that he is by certified Justice. the Structural Pest Control Board of Texas Terminix, Inc. and Terminix Internation- pest as a licensed applicator. control He al, (Terminix) Inc. appeal judgment phostoxin stated that he has eight used against them and in Right favor of Away past, twelve times and that he has Corporation (RAF), Foods damages for re- eight had years experi- and a half to eleven sulting from Terminix’s pest ence control business. His ex- packaging RAF’s and food processing facil- pertise mainly on-the-job comes from train- ities with the chemical A jury Phostoxin. ing supervision under the of Vernon Wal- found damages that the proximately were ters, presently an owner of Industrial Fu- by gross caused negligence of Terminix migants. Walters, who also testified at and the ordinary negligence phostox- trial, phostoxin has used since the late in supplier, Fumigants, Industrial and as- frequently 1960’sand has upon been called signed comparative degrees negli- supervise as a consultant to application. its gence to Terminix and to Industri- 80% 20% testified big- Brewer that this was the Fumigants. al jury The failed to find a gest phostoxin job done, that he had ever defendant, America, third Degesch Inc. professional assistance, that he needed (Degesch), manufacturer of the chemical that, exchange buying phostoxin for phostoxin, damages liable RAF’s under Fumigants, from Industrial he wanted Wal- negligence theories of either prod- or strict ters to him job. advise on the Brewer liability. ucts jury The assessed actual get further testified that he tried to autho- damages $63,824.19 in the amount of consultant, rization to hire Walters as a but exemplary damages $250,- in the amount of Terminix process did have time to Judgment 000.00. was rendered on the job began, authorization before the so the verdict that RAF recover from Terminix relationship remained informal. Walters damages, $51,059.35, of its actual 80% testified, however, that he had offered his plus prejudgment interest in the amount of Brewer, supervisor services as a but $37,711.96 exemplary damages and full necessary. Brewer said that it wasn’t $250,000.00, $338,771.31. totalling Termi- appeals by error, nix points eleven couple chal- A of weeks before the lenging legal sufficiency and factual personally of Brewer measured the dimen- building 22', temperatures ranged
sions of the at 1000' 300' show between 6,600,000 gave cubic feet. Brewer these degrees during period fumiga- dimensions to Walters calculate the he tion. Brewer also testified that took job, amount of needed to do the readings phosphine concentration and Walters ordered an amount on based specified the limits De- within that volume. Brewer testified that he did gesch, readings showed prior check his not double measurements fumigation. during once Walters Wal- fumigation. ap- ters Brewer testified when
Walters later found that the him proached dimensions the concentration read- about *4 incorrect, gave that Brewer him were the ings, “up to be Walters found them the building only really half the volume he point scary,” danger that is because dosage, phostoxin had used to the calculate Although of corrosion. Walters had used dosage and therefore the should have been high the he past, concentrations that had phostoxin the half amount of used. not used those concentrations around might corrode, as here. phosphine that
Brewer testified that he knew may cop- such that react with certain metals Walters testified he was not certain brass, per, gold, silver com- high enough and and that a these concentrations were concentration, high of excessive bination the he could corrode because temperature high humidity would and predict point not the exact at which corro- The dan- cause corrosion of these metal. occur; dealing he rather in sion would high phosphine ger of concentrations of margins. safety reacting high tempera- these metals at with preparation As the of RAF’s ware- for humidity by the tures and was confirmed fumigation, house the Sullivan testi- before testimony of Vernon Walters and Jeremiah charge have fied that those in should re- Sullivan, president Degesch, holds who a everything moved that was removable and Chemistry Ph.D. Pharmaceutical and is a sprayed objects protec- either fixed with a fumigator Virginia certified in the states of wrapped polyethylene, tant them or with and North Carolina. phosphine penetrate minimally will regulating testified the Walters that average fumigation. during an Walters dosage practical way phostoxin is the charge testified that if he had been prevent temperature and that corrosion fumigation, he have removed all the would degree range readings in the are con- that could be re- of the office application high purposes for sidered moved, with very and been careful the that the phostoxin. Sullivan testified dosage. building and the measurements used Brewer was amount that, building if the Walters further stated building the the amount needed for a twice properly, damage prepared had been the RAP warehouse and that this size the not occurred. would have high dosage a concentration would cause pre- before RAP phosphine. further testified that Brewer testified Sullivan temperatures in may fumigation, with pared corrosion occur he the warehouse degrees, humidity in the excess of 90 80% through plant, including took the Walters per range, parts of 725 and a concentration area, the the warehouse and lab. the office million, highest during the recorded the recommended Brewer stated that Walters fumigation. present photographic film and they that the remove copy the ma- paper, telephones, computers, hours, from fumigation The lasted for 72 chine, copper anything with silver evening through Monday, RAP Friday contacts, plastic they use 4-mil Tuesday. on employees returning to work furnished, bags, subsequently which RAF tempera- a took Brewer testified things be removed. to cover that couldn’t job reading when he started ture stated that Walters told Brewer further temperature monitored thereafter equip- him electrical electronic building. all the on the outside thermometer possible. if ment should be removed into evidence reports entered Weather Also, through anything protect Walters testified he went did not do office the Copy equipment, area with Brewer and told him Data based on Brew- equipment, including opinion certain er’s was not electrical that it that delicate. calculators, typewriters and could be dam- Billy Ashcraft, safety security removed, aged should be but Walters RAF, director for testified that Brewer go not into plant did because Brewer coater, jet security said the cameras not ask him did to. Walters also testified monitors, locks didn’t and the need to that he never told Brewer to use 4-mil removed, wrapped, just they and that bags, phosphine go right because will any problem wouldn’t have with the motors through hag. them and be retained in the wiring copying and their machine. walk-through, After the brief Brewer did Cavazos, president gen- Humberto vice any ask for more advice from Walters division, manager dry eral of the freeze applying phostoxin. larger said pieces testified that Brewer motors, Before equipment, Brewer had the strapping meeting machines, supervisors sealing jet with all the RAF and the coater explain how should their would not be effected *5 equipment happen and what if and could items did not have to be removed. protected. not Brewer assured RAF Upon returning work after to the fumi- that would use extreme caution and gation, employees noticed such sub- nothing consideration so that would be damage stantial to equipment corrosion the harmed. left the warehouse that RAF hired a consultant,
Brewer claims
told
McGaughey,
that he
RAF to re-
Robert
to investi-
everything possible
gate
move
damages
before the fumi-
fumigation
the
caused
the
gation, including specifically
security
the
and
McGaughey
estimate the loss.
testi-
unit,
system
copy
years experience
control
ap-
the
machine and
fied that he had 29
paper, and
copper
praising
damages
those machines with
con-
property
being
Brewer
gave
present appraisal.
tacts.
further stated that he
called for the
McGau-
Sartor,
RAF a written
everything
ghey
list of
in turn
Frank
hired
a consult-
that
ing
should be
engineer
engi-
removed or covered and how it
B.S. in
with a
chemical
accomplished.
should be
neering, to
the cause
determine
and extent
damages
of the corrosion
at the warehouse.
David McNally,
president
RAF vice
and
McGaughey report
Sartor submitted to
a
manager
operations,
testified that Brew-
findings
opinion
and his
that the cause
protect
er said it was
to
necessary
materi-
exposure
high
of the corrosion was
to
con-
with copper,
als
and silver in
brass
them
fumigant phostoxin,
centrations of the
un-
exposure
from
phosphine,
to
and Brewer
high temperature
der conditions of
specifically
protect
to
warned them
delicate
high humidity.
report
on Sartor’s
Based
equipment
by removing
like electronics
investigations, McGaughey
and his own
es-
they
using
plastic
what
could
4-mil
$54,666.97
equipment
timated a
for
loss
bags
protect
to
what could
be removed.
$9,185.34
itself,
building
the
computer manager
Brewer also advised the
$63,852.31 in total.
computer
to remove the
terminals. How-
ever,
By points
through
one
McNally
ap-
when
mentioned to Brewer
of error
four
plant
great
pellants
legal
deal
complain
had a
of electrical
and factual
sufficiency
support
electronic
to
with brass and
evidence
it,
they
Special
Issues
2 and 3.
copper
Brewer said
did not
answers to
evidence”,
phosphine
considering
to
“no
“insuffi-
have
be concerned
dam-
about
“against
great
larger
cient
age
because the
evidence” or
weight
big
heavy
preponderance
connectors were so
that it
of the evidence”
error,
freight
bumping
point
cars
follow the well-estab-
was “like two
into
we will
connecting.”
spe-
other and
Brewer
lished test set forth in Pool v. Ford Motor
each
(Tex.1986);
Co.,
cifically
Dyson
v.
indicated that
Glover General (Tex.1981); Alv for corrosion within the warehouse. 619 400 Garza v. vorable S.W.2d (Tex.1965); Farms, iar, Fi Goodpasture, 821 Allied Inc. v. S & J See Garza, (Tex. (Tex.Civ.App.—El Inc., 626 S.W.2d nance Co. 528 S.W.2d App.—Corpus Paso, 1975, writ). writ ref’d n.r. Christi Calvert, e.); and No Evidence and Insuffi suggests The evidence also Error, 38 Points Texas cient Evidence did not make a reasonable effort to Brewer (1960). L.Rev. 361 fumiga for the prepare RAF’s warehouse jury 1 the found Termi- By Special Issue and Sullivan testified to the tion. Walker failing give an negligent nix either to applicator should have measures that warning potential corrosive adequate protect within the taken to adequate in- give phostoxin, effects of McNally, testimony The warehouse. for the concerning preparations structions appellant and Cavazos shows that Ashcraft precautions phostoxin, to take the use of these measures failed even to recommend reasonably prudent damages that a against ap- that it Appellants RAF. claim take, prop- applicator certified would equipment. its own pellee’s duty to By Special Issue erly apply phostoxin. However, upon ex appellee relied Brewer’s negligence Terminix’s jury found preparations minimal pertise in the damages of actual proximate cause duty to had a warn took. Brewer RAF, that Termi- by Special Issue against dangers associated protect RAF reckless, wanton nix’s conduct was which would with the use of negligent. grossly readily apparent to RAF. See not be *6 points of error discuss first We Snap-Pac Corp., 476 v. McWilliams negli four, pertain to three (Tex.Civ.App.—Houston S.W.2d 941 [1st negligence. gross gence, opposed as n.r.e.). 1972, There ref’d was writ Dist.] that Terminix’s local There was evidence Brewer evidence to show that sufficient in negligent two broad agent, Brewer was failing properly to instruct negligent was first, applied categories: he to take before precautions RAF on the ware high a concentration for at too negligence proxi fumigation, and that his corrosion; safe from house to be to be mately caused much second, adequately to instruct he failed resulting phostoxin and the exposed to left protect their on how to personnel damages. against phosphine. theories there of the above Under either that the concentration Appellants claim evi- factually sufficient legally and was range. Walters exceeded a safe never appellants, jury to find that for the dence expert testimony about gave Sullivan Brewer, negligent and that through They testified phostoxin. of application proximate cause negligence their phosphine point exact at which that Appellant’s third damages. appellee’s is un- exposed metals starts to corrode are overruled. points of error and fourth However, testimony also their certain. points, appel- second By first and their applicator would suggests prudent that legal- the evidence was complain that lants likely. corrosion is range which avoid the support the factually insufficient ly and addition, indicates that common sense In Terminix, through finding that not have miscal- applicator would prudent Brewer, negligent. grossly space to be area of the culated the cubic in Texas negligence is defined Gross or, least, re- would have fumigated, at which would of care fumiga- that entire want his measurements checked or omission the act the belief that mis- raise tion, consequences of a considering the of a conscious the result complained of was evidence There is sufficient calculation. right or welfare indifference to negligent in his use that Brewer was show by it. affected persons to be person phostoxin, quantity twice the normal Inc., Industries, 699 Williams Steves proximately caused negligence his and that
681
(Tex.1985);
S.W.2d
572
Royalty
points
Burk
dispositive
one and two is
of these
Walls,
points
616
Co. v.
S.W.2d
as well and
do not
&
we
address them.
(Tex.1981);
Services,
Farm
Inc. v. Gon-
By
points
their fifth and sixth
zales,
756 S.W.2d
(Tex.App.—Cor-
error, appellants complain of the trial
pus
denied).
Christi
writ
grant
court’s failure to
a new trial based on
the jury’s
Degesch
failure to find
liable
lifts ordinary negligence
What
Special
Appellants
Issues 8 and 11.
con
gross negligence is the mental
attitude
they proved
tend that
as a matter of law
plaintiff
the defendant. The
must show
or, alternately, by
great weight
that the defendant
peril,
knew about the
preponderance of the evidence that De-
but his acts or omissions demonstrated that
gesch
give,
negli
either failed to
or was
he didn’t care. A mental
may
state
gent
respect
providing,
adequate
an
from
inferred
actions. All actions or cir warning
phos-
of the corrosive effects of
indicating
cumstances
a state of mind
adequate
toxin or
concerning
instructions
amounting to a conscious indifference must
preparations for its use.
in deciding
be examined
if there is some
Appellants
dispute
Degesch
do not
gross negligence. Williams,
evidence of
provided
labels,
warning
introduced into ev-
573;
at
Burk Royalty, 616
trial,
printed
idence at
which were
on the
plaintiff
S.W.2d at 922. The
may prove a
phostoxin containers and warned under a
gross
defendant’s
negligence by showing
section on “Environmental Hazards” that:
either
knowledge
had actual
however,
[Phosphine] may,
react with
his conduct
degree
created an extreme
brass,
copper,
certain metals such as
sil-
risk, or that under the surrounding circum
gold
corrosion, espe-
ver and
and cause
person
stances a reasonable
would have
cially
high temperatures
humidity.
at
realized
conduct created an ex
Precautions should be taken to
degree
treme
of risk
safety
to the
of oth
materials
compounds
made from such
in-
Williams,
ers.
before there is no evidence ei pesticide” toxin is a “restricted use that is ther that knowledge, he had actual or that only intended retail sale to and use “[f]or surrounding under the circumstances a rea by Applicators persons Certified or under realized, person sonable would have that supervision their direct and for those degree his conduct created an extreme of by Applicator’s uses the Certified covered safety risk to the Appellants’ of others. certification.” points first and second of error are sus contend, however, Appellants that these tained. warnings inadequate they were because did
By their tenth points and eleventh of specific not indicate measures that should appellants complain error that the trial be taken to materials from the fu- submitting in court erred an issue on exem- migant, they hight nor did indicate how plary damages failing suggest and in to a temperature, humidity and concentration $250,000 exemplary remittitur of in the had to be before corrosion would occur. damages jury grounds Appellants Degesch found on the also contend that they disposition warning that were excessive. Our should have included an additional
682 However, dosage McNally of and Ashcraft testified be reduced precautions periods high they it used took the tempera- when is in which Brew- removing bagging for er recommended and high humidity. ture and warehouse, in the also but warning Whether the manufacturer’s la representations relied on Brewer’s that cer- adequate a product bel on is view protected. not tain items did need question user the circumstances is a testimony suggests Their also that Brewer fact finder. Alm v. Aluminum Co. any never informed them of faults their 588, America, (Tex. 717 S.W.2d 592 of 1986); during walk-through final preparations Rogers, Dixon v. Van Waters and fumigation. 479, (Tex.App 674 S.W.2d 481 Worth — Fort Contributory negli like negligence, 1984, n.r.e.). present case, writ ref’d In the gence generally, is the failure to use ordi Degesch’s clearly labels literature nary person care do that which a warned the user about the risk corrosion prudence ordinary would have done under damage copper, equipment containing circumstances, doing or similar the same brass, gold or silver under conditions prudence a person ordinary high temperature high humidity. That not done under the same or would have Degesch given specific could have more High similar circumstances. Parker v. warnings does show a as matter law Park, Inc., 512, (Tex. 520 land 565 S.W.2d great weight preponderance 1978); Hernandez v. Southern Pacific the warnings actually provided Co., Transportation 641 S.W.2d inadequate. fifth sixth Appellants’ writ). (Tex.App. Corpus Christi — points are overruled. knowledge appreciation It requires By eighth points seventh and their danger part on the of the actor of to be appellants complain error of the trial Hernandez, at encountered. 641 S.W.2d grant court’s failure new trial on based 951; Developers v. Associated Jackson RAP failure find liable (Tex.Civ. Lubbock, 581 S.W.2d any Special percent- Issue or attribute n.r.e.). App. writ ref’d — Amarillo Special age of RAP in Issue causation to However, proceeding one’s conduct after Appellants they proved 17. contend that having knowledge danger is not al or, alternately, as a matter of law ways negligent. There are other consider great weight preponderance of the evi- danger, the such as the nature of the ations pro- negligent in the dence that available, precautions and the alternatives facilities, tection of its upon taken which the reasonableness bear per- therefore should have been allocated a 520; Parker, at of the actions. *8 centage comparative of the causation its Dryden, Co. States Utilities Gulf damages. (Tex.App. — Beaumont 1987, writ). testimony Appellants point to the McNally supervisors that Brewer told Although appellee was aware pieces of to delicate by danger posed the general of corrosion against exposure copper or brass in them its fumigant, from Brewer told aside what fumigant by removing as much as to the ex supervisors, appellee did not know the plas- in 4-mil possible bagging the rest specific pieces danger to tent of that Appellants point testi- also to Brewer’s precautions necessary tic. to equipment or the pro- satisfactorily mony Viewing that RAF had prevent the evidence corrosion. he made equipment when his favorably appellee, pre tected certain to it took all most fumigation. Ap- danger walk-through against final this that Brewer cautions that, appellee upon failed pellants contend since Brewer as an ex advised relied responsibility protecting its own to pert to take in the field. The evidence fails instructed, appellee the equipment as Brewer show either as a matter of law great weight de- of the evi contributorily negligent preponderance some was neg- contributorily appellee gree. dence ligent protection get the percent its “we could not a hundred out of Appellants’ and facilities. point.” seventh and our at that This caused eighth points of error are overruled. delays production, required which soon replace strapping RAF to the machines.
By point appel their ninth of error that, McGaughey process testified in the complain lants that the trial court erred in appraisal failing grant of an he determines can a new trial or remit the what be repaired damages replaced actual and what should Special awarded in Issue be grounds inspection watching on the visual equip- that the evidence legally factually operate. case, ment In present insufficient to sustain he visit- brief, appellants spe award. their ed the separate days, warehouse on nine cifically complain only damage that there was no because much of pieces evidence insufficient machinery evidence show was not immediately apparent strapping that two machines had to be re but revealed itself gradually when placed damage due to corrosion from the parts began to fail and the machines had to fumigant. McGaughey’s disassembled. estimated $63,852.31, total loss of based on the re- The strapping warehouse had two ma- inspection sults of his own as well as Sar- chines that bind the cartons which RAF report, $25,500.00 tor’s included for re- packs product by pulling its strap around placement strapping of the two machines. carton, it, heat-sealing cutting By Special its answer to jury Issue strap excess off. RAF employees noticed apparently accepted this estimate as accu- that the working prop- machines were not rate. erly after the and that there parts, was some corrosion of the legally We hold that there is and factual- Afterward, removed and cleaned. ly support sufficient evidence to however, they problems continued to have damages. Appellant’s award of actual stapping with the machines. RAF asked point ninth is error overruled. Sartor, McGaughey’s engineering chemical judgment The awarding the trial court consultant, investigate and verify that $250,- exemplary damages in the amount of causing problems corrosion was with the against appellants is reversed and strapping machines. judgment exempla- is here rendered that no Appellants point testimony to Sartor’s ry damages be recovered. The remainder that, in opinion, problems these were judgment of the trial court is af- machines, not caused corrosion to the firmed. that, plant personnel but after had re- parts, moved cleaned corrosion of the DORSEY, J., concurs. they put together the machines back out of DORSEY, Justice, concurring. adjustment. Sartor testified at the opinion I concur in the of the Court that plant, time he left proper adjust- support finding there is no evidence to strapping ments had been made and the gross negligence; however, disagree I working machines properly. majority with the as to which element of Cavazos, however, *9 testified that his gross negligence lacking evidentiary sup- is day day experience strapping to around the port. machines after the he noticed negligence Gross is that entire of want copper parts corrosion of the inner which care which would raise the belief that the prevented strapping the machines from complained re- feeding act or omission of was the properly sealing strap, and the and sult of conscious indifference to the wel- replace many parts that he had to right to fare or of another. v. started break down from corro- Williams 570, Industries, Inc., inspected sion. after Sartor the 699 S.W.2d Even had Steves case, (Tex.1985). the strapping machines and found them to 572 In the instant order, good injury complained Cavazos noticed that of is the corrosion of performing properly copper parts Al- were not various machines. 684
though fumigant phostoxin high side,” the is poison- although a taken “on the was chemical, personal injuries ous suf- alarming. took Brewer no action to reduce The risk exposed fered. to which Terminix the concentration. appellee the was a risk to the of negate Evidence of “some does not care” during appellee fumigation. The risk of required “such an entire want care” heightened by high humidity corrosion gross negligence Royalty cases. Burk Co. ’high temperatures within the ware- Walls, 911, (Tex.1981). v. 616 S.W.2d phos- house and the amount excessive Nonetheless, evidence, there is no viewed toxin. light plain in the most to the favorable Brewer, The mental state of Mr. Termi- tiff/appellee, that consciously Brewer was manager applicator, is
nix’s the deter- or, risk simply, indifferent to the more mining Although factor. there is no direct he did not care. height- evidence that Brewer knew of the phostoxin ened corrosive un- attributes high humidity high
der conditions of
temperatures, reading he admitted la- the acquaint dangers. himself
bel
Warnings on the label and literature clear-
ly advised caution because of the increased
potential for corrosion chemical temperature humidity I increased. KLASING, Appellant, William knowledge some of his find evidence if risk. Even did not those Brewer know phostoxin, risks of he should known Texas, Appellee. have The STATE applicator He was them. an certified No. 13-88-117-CR. Texas Pest Structural Control Board Texas, fumigant is Appeals a whose distribu- Court applicators Corpus tion is limited to certified be- Christi. dangerousness toxicity cause of the May 1989. product. Rehearing Denied 1989. June However, evidence there is no consciously to those risks indifferent reviewing the legal of corrosion. In suffi- evidence,
ciency we look at the support
evidence tends disregard
conclusion and all evidence to Estate, Tex.
contrary. King’s re (1951). To aid
our review of evidence tends ele-
support indifference” “conscious
ment, argued by appellee: several are facts building
Brewer’s failure to measure time, to ascertain the
second his failure inside
temperature humidity the build-
ing prior during pro- of how
giving incorrect advice best equipment, and Terminix’s failure
tect the Walters, recognized ex-
to hire Vernon *10 as a consultant for
pert fumigants, fumigation. During Brew- readings the concentration of the
er took Walters, who tes-
toxin and conferred with reading he told Brewer one of several
tified