Burk Royalty Co. v. Walls

GREENHILL, Chief Justice.

I agree that in viewing the record as a whole, there is evidence to support the jury’s finding that there was conscious indifference to the safety of Jeffery Walls.

The Court’s opinion evidences careful, research and strikes out to improve and settle a difficult area of the law. While it overrules a long line of opinions to bring the Court to one simplified rule, it clings to another test for reviewing jury findings on “conscious indifference” which seems to me to be unrealistic.

My problem with the Court’s opinion is its use of the “traditional no evidence test” in determining whether there is evidence to support the jury’s verdict. While saying it follows the “traditional” test, the opinion *926 does not. A part of the “traditional no evidence test” is that this Court disregards all evidence unfavorable to the jury’s answers. The Court’s opinion, it seems to me, consciously removes that part of the “traditional” test and moves down to another; i. e., that [all] the evidence must be viewed in the light most favorable to the jury’s verdict.

After all, as our cases say, we are trying to determine whether the defendant acted with conscious indifference to the safety of others. The bottom line, as I read the cases, is the state of mind of the defendant. Did he or she act with callous or conscious indifference to the safety of others? To do that, I suggest that the reviewing court must look at all the facts.

In a large number of our cases, the Court has not disregarded all of the acts of the defendant. It has considered the bad and the not-bad elements of the defendant’s behavior in reaching the legal conclusion that there is evidence to support the jury’s verdict, or not. The use of the words “any,” or “some” evidence should not, in my opinion, be dispositive in gross negligence cases.

For example: there is evidence that the defendant, in a non-defective car, continued to drive at 65 miles per hour into a small town. The defendant runs a red light and passes a car over the center line before there is an accident. That is “some evidence” of gross negligence. If the Court considers only that evidence, it must affirm a gross negligence finding. Then the court finds that the defendant’s wife and daughter, or other persons, are bleeding to death in the back seat of defendant’s car; and they will die if they do not receive immediate medical attention. Will the Court then use the “traditional no evidence test” to evaluate gross negligence? There may be negligence, yes. But is there conscious indifference to human life?

In Siebenlist v. Harville, 596 S.W.2d 113 (Tex.1980), the young defendant was “dragging” on the damp streets of a small town. There was no reason for this conduct except excitement. The case did not involve the guest statute. This Court held that from all the facts and circumstances, there was evidence to support the jury’s finding of conscious indifference. We did not (or I did not as author of the opinion) use the “traditional no evidence test.”

In Atlas Chemical Industries, Inc. v. Anderson, 524 S.W.2d 681 (1975), the original opinion of this Court points out several instances of “care,” or “some care” exercised by the defendant. The guest statute was not involved. The case was one of the pollution of a stream by the chemical company. Citing Sheffield, the Court’s original opinion found “no evidence” of a “complete want of care” by the chemical company. Several items of “care” are listed. On rehearing, the Court reversed itself. We wrote that from other evidence in the case, the jury was entitled to conclude that the chemical company did act with conscious indifference in discharging the pollutants into the stream. The Court did not use the “traditional no evidence test,” or the “complete want of care test.” It reached its legal conclusion from all of the evidence.

There are several guest statute cases by this Court which, from the opinions as I read them, consider all the evidence. The Court’s opinion in this Burk Royalty case pays lip service to those holdings by saying that the Court will apply the “traditional no evidence test,” — but it will look to the “facts and circumstances.” I am at a loss to understand what “the facts and circumstances” are if it does not mean that the Court will look at all the evidence. Looking at all the evidence and also applying the “traditional no evidence test” are, to me, contradictory.

Thus in Bowman v. Puckett, 144 Tex. 145 , 188 S.W.2d 571 (1945), the jury found gross negligence. This Court’s opinion points out the items of “care” by the defendant. He slowed his car from 70 or 80 miles per hour to 40 or 50 as he entered the small town. He applied his brakes to avoid the accident. The brakes “grabbed” and caused the car to skid. There was evidence that defendant knew that his brakes might “grab.” Justice Smedley wrote for us that “the facts in evidence ... tend strongly to prove that respondent was acting in a heedless and *927 reckless disregard .... ” 188 S.W.2d at 574 . [Emphasis mine.] I suggest this is a far cry from the “traditional no evidence test.”

The Court’s opinion in this case sets out on pages 922 to 923 much evidence of conscious indifference by the agent or agents of Burk Royalty Company. The dissenting opinion sets out evidence of “some care” on page 928. Considering all of the evidence, my conclusion is that there is evidence to support the jury’s finding that there was a conscious indifference by Burk Royalty to the safety of Jeffery Walls.