Williams v. Steves Industries, Inc.

BRADY, Justice,

dissenting.

I disagree with the majority opinion wherein it holds that as a matter of law the act of Ingram in permitting Robinson to drive its commercial vehicle without a commercial license, “being the only act found by the jury to constitute a heedless and reckless disregard of the rights of others,” is not sufficient to justify imposition of exemplary damages.

As the majority opinion points out, the jury was instructed according to the definition of gross negligence found in Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981). In Burk, the Supreme Court held that we must employ the “traditional no evidence test” in determining whether there is evidence to support the jury’s verdict. The Court in Burk stated:

When there is some evidence of defendant’s entire want of care and also some evidence of “some care” by the defendant, the jury finding of gross negligence through entire want of care resolves the issue, and the appellate court is bound by the finding in testing for legal insufficiency.

Id. at 921 . In testing a jury finding of gross negligence, the same no evidence test should apply as to any other fact issue. If the jury finds gross negligence, as it did here, the defendant has the burden of establishing that there is NO evidence to support the finding. In the present case, the jury found that appellant was guilty of gross negligence because the appellants “knew, or in the exercise of ordinary care should have known” that Robinson had no commercial license. Further, the fact that appellant continued to permit its driver to drive the commercial vehicles after this accident without requiring him to pass the test and acquire a commercial operator’s license shows the state of mind of appellant. As former Chief Justice Greenhill stated in his concurring opinion in Burk:

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?

Id. at 926 . And, as stated in the majority opinion in Burk:

The essence of gross negligence is not the neglect which must, of course, exist. What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages. .

Id. at 922 . Certainly the fact that months after this tragic occurrence appellee still failed to see to it that its driver had taken and passed the necessary tests for obtaining a commercial operator’s license is some evidence of gross negligence. We can certainly infer a mental state from Ingram’s conscious indifference to see that its driver was properly and legally licensed to drive its commercial trucks. Cf. Montgomery Ward & Co. v. Marvin Riggs Co., 584 S.W.2d 863 (Tex.Civ.App.1979, writ ref’d n.r.e.); Wilson N. Jones Memorial Hospital v. Davis, 553 S.W.2d 180 (Tex.Civ.App.1977, writ ref’d n.r.e.); Hines v. Nelson, *214 547 S.W.2d 378 (Tex.Civ.App.1977, no writ); Adams Leasing Co. v. Knighton, 456 S.W.2d 574 (Tex.Civ.App.1970, no writ); Goff v. Lubbock Bldg. Products, 267 S.W.2d 201 (Tex.Civ.App.1953, writ ref’d n.r.e.).

In making this determination, all evidence must be considered in a light most favorable to the party in whose favor the jury verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in such party’s favor. Stated another way, the traditional standard to be applied by an appellate court in testing a “no evidence” point is for the court to consider ONLY the evidence, when viewed in its most favorable light, that tends to support the jury’s finding of gross negligence and to disregard all evidence leading to a contrary conclusion. Burk Royalty Co. v. Walls, supra, at 915; Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); In re King’s Estate, 150 Tex. 662 , 244 S.W.2d 660 (1951); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).