Harry James Warner v. Stewart & Stevenson Realty Corporation, et al.--Appeal from 11th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-177-CV

HARRY JAMES WARNER,

Appellant

v.

STEWART & STEVENSON

REALTY CORPORATION, ET AL.,

Appellees

From the 11th District Court

Harris County, Texas

Trial Court # 90-29330

O P I N I O N

This is an appeal by Appellant Warner from that portion of a judgment that awards exemplary damages.

Appellant (plaintiff in the trial court) was injured when he fell into an uncovered manhole built by defendant Stewart and Stevenson Realty Corporation on land owned by it and over which defendant Harris County Flood Control District had an easement.

Appellant, alleging negligence and gross negligence, sued the two defendants for his injuries.

Trial was to a jury which found that both defendants had control over the manhole; that the negligence of both defendants caused plaintiff's injuries; that actual damages should be assessed in the amount of $9,000; that both defendants were grossly negligent; that $1 exemplary damages should be awarded against the Flood Control District; and that $0 exemplary damages should be awarded against Stewart & Stevenson.

The trial court rendered judgment for plaintiff on the verdict, awarding $1 exemplary damages against the Food Control District and $0 for exemplary damages against Stewart & Stevenson.

Appellant filed a motion for a new trial solely to the findings of the jury regarding exemplary damages, which motion was denied by the trial court. He then filed a notice of limitation of appeal to issues of the judgment regarding exemplary damages and appeals on three points.

Point one asserts the jury's answers of $0 and $1 exemplary damages are inconsistent and irreconcilable with the jury's findings of gross negligence on the part of both appellees; point two asserts that $0 and $1 exemplary damages are grossly inadequate given the findings of gross negligence; and point three asserts the findings of $0 and $1 are against the great weight and preponderance of the evidence.

Question 10 asked the jury:

Was Harris County Flood Control District's gross negligence, if any, a proximate cause of the occurrence or injury in question?

Harris County Flood Control District was grossly negligent with respect to the condition of the premises if:

Harris County Flood Control District's conduct was more than momentary thoughtlessness, inadvertence, or error of judgment. In other words, Harris County Flood Control District must have displayed such an entire want of care as to indicate that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the persons affected by it?

The jury answered: "YES."

Question 11 asked the jury:

What sum of money, if any, should be assessed against Harris County Flood Control District and warded to Harry Warner as exemplary damages?:

"Exemplary damages" means an amount that you may in your discretion award as an example to others and as a penalty by way of punishment, in addition to any amount that you may have found as actual damages. Answer in dollars and cents, if any.

The jury answered: $1.

Questions 12 and 13 were identical to questions 10 and 11, except they inquired as to Stewart & Stevenson.

The jury answered Question 12, "Yes," and answered Question 13, "$0."

Questions 11 and 13 inquired as to what sum of money, "if any," should be assessed as exemplary damages; and the instruction accompanying the issues expressly stated that "exemplary damages means an amount that you may in your discretion award . . . ."

Thus, as the jury was not required to assess exemplary damages even though the elements therefor exist; and the answer of the jury to a question finding the facts necessary to establish an award of exemplary damages is not inconsistent with an answer to a question that no exemplary damages are assessed. Sec. 345 Damages, 28 Tex. Jur. 3d, p. 522.

An injured person has no vested right to an award of exemplary damages and the award of such damages rests solely within the discretion of the jury. Thus, when the elements of such damages were found by the jury to exist, they may make an award of exemplary damages; but if the jury refuses to assess such damages, whatever may be the facts, the injured party cannot complain. Sec. 352 Damages, 28 Tex. Jr. 3d, p. 530; Cotton v. Cooper, Com. Appls, 209 S.W. 135, 138; Von Deventer v. Gulf Production Co., (Tex. App Beaumont 1931), er. ref'd, 41 S.W.2d 1029, 1033, 1034.

Appellant has not brought forward a statement of facts. In the absence of a statement of facts, this court must presume that there was sufficient evidence to support the jury's findings. Englander v. Kennedy, 428 S.W.2d 806 (Tex.); Ehrhart v. Ehrhart, (Tex. App. Waco), 368 S.W.2d 37, er. ref'd. Additionally, as to the Harris County Flood Control District, it is an agency of the State of Texas and, as such, is covered by the Tort Claims Act. Harris County Flood Control District v. Mihelich, 525 S.W.2d 506 (Tex.). The Texas Tort Claims Act, section 101.024, provides that exemplary damages are not authorized.

All of Appellant's points are overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 2, 1994

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