Darrell Hodnett v. AMERIND OIL COMPANY, LTD. AND JAMES E. YELEY DBA YELEY OPERATING--Appeal from 118th District Court of Martin County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DARRELL HODNETT,

Appellant,

v.

AMERIND OIL COMPANY, LTD. AND JAMES E. YELEY D/B/A YELEY OPERATING,

Appellees.

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No. 08-02-00400-CV

Appeal from the

118th District Court

of Martin County, Texas

(TC#5463)

MEMORANDUM OPINION

Darrell Hodnett appeals from a take nothing judgment rendered against him and in favor of Amerind Oil Company, Ltd. and James E. Yeley, doing business as Yeley Operating. We affirm.

Factual and Procedural Background

Amerind hired Weatherford International to install a new pump on one of Amerind=s oil wells. Hodnett was an employee of Weatherford International. Weatherford sent Hodnett to complete the installation. Yeley was an independent contractor who acted as a drilling and production superintendent for Amerind. On the day that Hodnett installed the pump, a safety platform was at the site so Hodnett would have a safe place to stand while he worked. But Yeley had the safety platform removed before Hodnett arrived. To install the pump, Hodnett climbed up a horizontal pipe and stood on a valve. Yeley assisted Hodnett by handing him tools. On the first try, the pump got stuck. To dislodge the pump, Hodnett again stood on the valve. When the pump became dislodged, a mixture of oil and water oozed out of the valve. Hodnett lost his balance, slipped, and fell.

Hodnett sued Yeley and Amerind, alleging that they negligently failed to provide him with a safe place to work because they failed to provide a safety platform, to warn that a safety platform would not be provided, and to keep another crew at the location to assist him. Hodnett requested that an ordinary negligence question be submitted to the jury. The trial court denied this request, and submitted the following question instead:

Did the negligence, if any, of [Yeley or Hodnett] proximately cause the occurrence in question?

With respect to the condition of the premises, James E. Yeley was negligent if--

a. James E. Yeley exercised or retained some control over the manner in which the work was performed by Darrell Hodnett, other than the right to order the work to start or stop or to inspect progress or receive reports; and

b. The condition posed an unreasonable risk of harm; and

c. James E. Yeley had actual knowledge of the danger; and

d. James E. Yeley failed to exercise ordinary care to protect Darrell Hodnett from the danger, by both failing to adequately warn Darrell Hodnett of the condition and failing to make that condition reasonably safe.

The jury answered ANo@ as to Yeley=s negligence and AYes@ as to Hodnett=s negligence. The charge also asked the jury whether Yeley was acting as Amerind=s employee at the time of the accident. The jury answered ANo@ to this question. Finally, the charge asked the jury what sum of money would compensate Hodnett Afor his injuries, if any, that resulted from the occurrence in question.@ The jury answered A0@ to this question.

Discussion

In his sole point of error, Hodnett argues that the trial court erred by submitting a premises liability question instead of an ordinary negligence question. Assuming without deciding that the trial court erred, we conclude that the error was harmless.

It is well settled that submission of an improper jury question is harmless if the jury=s answer to another question is sufficient to support the judgment. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995); Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex. 1980). An exception exists when the improper question may have confused or misled the jury. Alvarado, 897 S.W.2d at 752; Bailey, 609 S.W.2d at 750. To determine whether a particular question could have confused or misled the jury, we consider its probable effect on the minds of the jury in light of the charge as a whole. Alvarado, 897 S.W.2d at 752.

In this case, the jury=s unchallenged finding of no damages is sufficient to support the take nothing judgment. Therefore, the wording of the negligence question was harmless unless it would have confused or misled the jury. Hodnett has not demonstrated, and our review of the record fails to disclose, how the purportedly erroneous wording of the negligence question would have confused or misled the jury regarding the damages question. See Bailey, 609 S.W.2d at 750 (holding, in a defective product case, that purportedly improper submission of defensive issues would not have confused or misled the jury because focus of defensive issues was different from focus of issue regarding whether the product was defective); see also James v. Hudgins, 876 S.W.2d 418, 423 (Tex. App.--El Paso 1994, writ denied) (holding that the failure to mount an appellate attack on a finding of no damages renders asserted error on liability issues harmless); Canales v. National Union Fire Ins. Co., 763 S.W.2d 20, 23 (Tex. App. --Corpus Christi 1988, writ denied) (stating the general rule that Aerror in the submission of or the submitted charge relating to liability [is] rendered harmless by a zero damage finding@); Wooley v. West, 575 S.W.2d 659, 660 (Tex. Civ. App.--Fort Worth 1978, writ ref=d n.r.e.) (holding that trial court=s purportedly erroneous refusal to instruct the jury on res ipsa loquitur was harmless because the appellant failed to attack the jury=s finding of no damages).

Conclusion

For the reasons stated herein, we conclude that any error in the charge related to negligence was rendered harmless by the jury=s unassailed finding of no damages.

Accordingly, Hodnett=s sole point of error is overruled, and the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

November 13, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.