1. law, govt and politics

NO. 10-0610
In the
Supreme Court
of Texas
KENNEDY WIRE ROPE & SLING COMPANY,
Petitioner
v.
JAMIE CRENSHAW,
Respondent
On Petition for Review from the Court of Appeals,
Fourth District of Texas at San Antonio
(Court of Appeals No. 04-09-00410-CV)
PETITION FOR REVIEW
Michael W. Eady
State Bar No. 06332400
Wade Crosnoe
State Bar No. 00783903
Thompson, Coe, Cousins & Irons, L.L.P.
701 Brazos, Suite 1500
Austin, Texas 78701
Telephone: (512) 708-8200
Facsimile: (512) 708-8777
Counsel for Petitioner Kennedy Wire Rope &
Sling Company
IDENTITY OF PARTIES AND COUNSEL
1.
Petitioner/Appellee/Cross-Appellant/Defendant Kennedy Wire Rope & Sling
Company
a.
Trial Counsel
David A. McFarland
Thompson, Coe, Cousins & Irons, L.L.P.
700 N. Pearl Street, 25th Floor
Dallas, Texas 75201-2832
Telephone: (214) 871-8292
Facsimile: (214) 871-8209
b.
Appellate Counsel:
Michael W. Eady
Thompson, Coe, Cousins & Irons, L.L.P.
701 Brazos, Suite 1500
Austin, Texas 78701
Telephone: (512) 703-5084
Facsimile: (512) 708-8777
David A. McFarland
Thompson, Coe, Cousins & Irons, L.L.P.
2.
Respondent/Appellant/Cross-Appellee/Plaintiff Jamie Crenshaw
a.
Trial Counsel:
Steve T. Hastings
Henry M. Blackmon
Hastings Law Firm
101 N. Shoreline Boulevard, Suite 300
Corpus Christi, Texas 78401
Telephone: (361) 692-2000
Facsimile: (361) 692-2001
Russell H. McMains
Law Office of Russell H. McMains
500 North Shoreline Boulevard, Suite 1100
Corpus Christi, Texas 78471
i
Charles Barrera
Barrera & Barrera
107 South Sequin
San Diego, Texas 78384
Gregory Herrman
Herrman & Herrman
1201 Third Street
Corpus Christi, Texas 78404
b.
Appellate Counsel:
Timothy Patton
Timothy Patton, P.C.
11 Lynn Batts Lane, Suite 120
San Antonio, Texas 78218
Telephone: (210) 832-0070
Facsimile: (210) 832-0080
Steve T. Hastings
Henry Blackmon
Hastings Law Firm
3.
Appellee/Cross-Appellant/Defendant Newco Manufacturing Company, Inc.
a.
Trial Counsel:
David Stephenson
Geoffrey N. Courtney
Kathryn A. Stephens
Clemens & Spencer, P.C.
112 East Pecan Street, Suite 1300
San Antonio, Texas 78205-1512
Telephone: (210) 227-7121
Facsimile: (210) 227-0732
b.
Appellate Counsel:
David Stephenson
Geoffrey N. Courtney
Kathryn A. Stephens
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................................ i
TABLE OF CONTENTS ...................................................................................................... iii
INDEX OF AUTHORITIES ................................................................................................... v
STATEMENT OF THE CASE .............................................................................................. vii
STATEMENT OF THE CASE .............................................................................................. vii
STATEMENT OF JURISDICTION ....................................................................................... viii
ISSUES PRESENTED.......................................................................................................... ix
INTRODUCTION................................................................................................................. 1
STATEMENT OF FACTS ..................................................................................................... 1
I.
The Underlying Lawsuit..................................................................................... 1
II.
The Court’s Charge ............................................................................................ 2
III.
Jury’s Verdict and the Trial Court’s Judgment ................................................... 3
IV.
Court of Appeals’ Result and Reasoning ............................................................ 3
SUMMARY OF THE ARGUMENT ......................................................................................... 4
ARGUMENT ...................................................................................................................... 5
I.
II.
The Jury Should Be Properly Instructed on the Law; the Jury Should Not
Be Kept in the Dark ........................................................................................... 5
A.
The jury should be told what both the court and the lawyers know to
be true—isolated references to someone in terms of “my wife” or
“my husband” are not adequate evidence of holding out each other
to the public as man and wife. .................................................................... 5
B.
This instruction assisted the jury and Kennedy, like Crenshaw, was
entitled to a jury properly instructed on the law. ........................................ 6
The Court of Appeals Got It Wrong ................................................................... 8
iii
III.
IV.
A.
The correct standard is Rule 277................................................................ 8
B.
Where did the court of appeals go wrong? ................................................. 8
The Rules That Guide the Trial Court’s Exercise in Fashioning
Instructions to the Jury Are Confused and Conflicting ..................................... 11
A.
Acord v. General Motors Corporation ..................................................... 12
B.
Lemos v. Montez....................................................................................... 13
C.
Can the court of appeals’ application of Acord and Lemos be
reconciled with the more recent precedents of this Court? ....................... 15
Why Clarity Is Needed ..................................................................................... 15
PRAYER ......................................................................................................................... 15
CERTIFICATE OF SERVICE ............................................................................................... 17
APPENDIX
Final Judgment ......................................................................................................Tab A
Charge of the Court................................................................................................Tab B
Fourth Court of Appeals Opinion...........................................................................Tab C
Tex. Fam. Code § 2.401........................................................................................ Tab D
Pattern Jury Charge 201.4 ...................................................................................... Tab E
iv
INDEX OF AUTHORITIES
Cases
Acord v. Gen. Motors Corp., 669 S.W.2d 111 (Tex. 1984)...............................4, 12, 13, 15
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851
(Tex. 2009) ............................................................................................7, 8, 10, 15
Crenshaw v. Kennedy Wire Rope & Sling, No. 04-09-00410-CV, 2010 WL
2601662 (Tex. App.—San Antonio, June 30, 2010, pet. filed) ..............vi, 3, 12, 13
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000)............................................. 6
Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 379 (Tex. 1952) ............................... 14
Dew v. Crown Derrick Erectors, 208 S.W.3d 448 (Tex. 2006) ...................................... 10
Dillard v. Tex. Elec. Coop., 157 S.W.3d 429 (Tex. 2005) .............................................. 10
Drummond v. Benson, 133 S.W.2d 154 (Tex. Civ. App.—San Antonio 1939, writ
ref’d)..................................................................................................................... 6
Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex. 1981)............................................ 5
Ex parte Threet, 333 S.W.2d 361 (Tex. 1960).................................................................. 5
Flores v. Flores, 847 S.W.2d 648 (Tex. App.—Waco 1993, writ denied) ........................ 6
Gary v. Gary, 490 S.W.2d 929 (Tex. Civ. App.—Tyler 1973, writ ref'd n.r.e.) ................ 6
H.E. Butt Grocery Company v. Bilotto, 985 S.W.2d 22 (Tex. 1998) ................................ 9
In re Estate of John J. Giessel, 734 S.W.2d 27 (Tex. App.—Houston [1st Dist.]
1987, writ ref’d n.r.e.)........................................................................................... 6
La.-Pac. Corp. v. Knighten, 976 S.W.2d 674 (Tex. 1998) (per curiam).......................... 4, 8
Lemos v. Montez, 680 S.W.2d 798 (Tex. 1984)................................................4, 13, 14, 15
Lewis v. Anderson, 173 S.W.3d 556 (Tex. App.—Dallas 2005, pet. denied) .................. 10
Maddox v. Denka Chem. Corp., 930 S.W.2d 668 (Tex. App.—Houston [1st Dist.]
1996, no writ) ..................................................................................................... 12
Nichols v. Lightle, 153 S.W.3d 563 (Tex. App.—Amarillo 2004, no pet.)........................ 6
v
Osterberg v. Peca, 12 S.W.3d 31 (Tex. 2000).................................................................. 7
Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) ................................................... 12
Shupe v. Lingafelter, 192 S.W.3d 577 (Tex. 2006)........................................................... 7
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009)............................................... 13
Winfield v. Renfro, 821 S.W.2d 640 (Tex. App.—Houston [1st Dist.] 1991, writ
denied).................................................................................................................. 6
Statutes
Tex. Fam. Code § 2.401................................................................................................... 2
Tex. Gov't Code § 22.001(6).......................................................................................... vii
Rules
Tex. R. Civ. P. 277 ...................................................................... viii, 1, 4, 5, 8, 13, 14, 15
vi
STATEMENT OF THE CASE
Nature of the Case:
This is a product liability case involving an oilfield accident.
Jamie Crenshaw, the alleged common-law spouse of the
decedent, David Goehring, seeks recovery as a surviving
spouse under the Texas Wrongful Death Statute.
Trial Court:
The Honorable Alex William Gabert, 229th Judicial District
Court, Duval County, Texas
Course of Proceedings:
The case was submitted to the jury on March 2, 2009. The
jury answered “no” to Question No. 1, which inquired
whether Jamie Crenshaw and David Goehring were married
at the time of David Goehring’s death. Because of the jury’s
negative answer to Question No. 1, the jury did not reach the
questions on design defect, comparative responsibility and
damages.
Trial Court’s
Disposition:
Judgment was entered based upon the verdict, and a takenothing judgment signed on April 7, 2009.
Parties in the Court of
Appeals:
Appellant Jamie Crenshaw
Appellees/Cross-Appellants Kennedy Wire Rope & Sling
Company and Newco Manufacturing Company, Inc.
Court of Appeals:
Fourth Court of Appeals at San Antonio, Texas
Disposition by the Court
of Appeals:
In a June 30, 2010 opinion authored by Justice Phylis J.
Speedlin and joined by Justices Sandee Bryan Marion and
Marialyn Barnard, the court of appeals affirmed the trial
court’s judgment rendering a take-nothing judgment in favor
of Appellee Newco Manufacturing Company, Inc. and
reversed the remaining portion of the trial court’s judgment
as to Appellee Kennedy Wire Rope & Sling Company. The
court of appeals remanded the cause of action regarding
Kennedy to the trial court for further proceedings.
Crenshaw v. Kennedy Wire Rope & Sling, No. 04-09-00410CV, 2010 WL 2601662 (Tex. App.—San Antonio, June 30,
2010, pet. filed).
vii
STATEMENT OF JURISDICTION
The Supreme Court has jurisdiction over this appeal under Tex. Gov’t Code §
22.001(6) because the court of appeals has committed several errors of law of such
importance to the state’s jurisprudence that they should be corrected.
The court of appeals rejected the jury instruction in this case based upon
considerations not found in Rule 277 such as nudging, etc. How the jury should be
instructed and when the jury should not be told the law are matters of great importance to
this state. Our system presupposes a properly functioning jury system that includes a jury
properly instructed on the law. The rules should be simple, uncomplicated and not
subject to second-guessing utilizing concepts outside of Rule 277.
Likewise, the determination of the existence of informal or common-law
marriages is of importance to our state’s jurisprudence. The jury plays a key role in that
process. Common-law marriages should not be lightly recognized lest the low threshold
creates legal relationships never intended.
viii
ISSUES PRESENTED
1.
Proof of common-law marriage requires three elements that must exist at the same
time: (1) the parties agreed to be married; (2) the parties lived together in Texas as
husband and wife after they agreed to be married; and (3) the parties represented
to others that they were married. Texas courts, including this one, have regularly
stated that isolated instances of referring to another as “my husband” or “my wife”
are not adequate evidence that they represented to others that they were married.
Was it within the trial court’s discretion under Tex. R. Civ. P. 277 to instruct the
jury that “mere isolated references” to each other as husband and wife do not
amount to adequate evidence to prove that they represented to others that they
were married?
2.
Rule 277 allows the trial court broad discretion in fashioning instructions to the
jury, forbidding only those instructions that directly comment on the weight of the
evidence. Rule 277 mentions nothing about other guidelines that the court of
appeals considered in this case—whether the instructions “tilt,” “nudge,” or
“embellish” deviate from statutory language. What are the guidelines governing
the trial court’s instructions to the jury that should be followed by litigants and
Texas courts?
3.
Did the court of appeals err in concluding that the two isolated instances in which
David Goehring supposedly referred to Jamie Crenshaw as his wife together with
Jamie Crenshaw’s self-serving statements were sufficient to warrant submitting a
question on the existence of common-law marriage to the jury? (unbriefed)
ix
TO THE HONORABLE SUPREME COURT OF TEXAS:
INTRODUCTION
This case exemplifies the confused state of Texas jury charge practice for
determining when, if ever, the trial court can give the jury a correct legal instruction that
is not an approved pattern instruction. Despite the comprehensive nature of Rule 277 and
supposed broad discretion in fashioning instructions, in practice it is just not true. The
discussion moves from Rule 277 to considerations of whether the instruction “nudges,”
“tilts,” or constitutes impermissible “embellishment” or addendum. That was true here.
To that list, the court of appeals added yet another reason to reject an instruction. Here,
the instruction was rejected not because it was an incorrect statement of the law, but
because it “favored” the defense theory. But none of these words or terms are contained
in Rule 277. The only limitation in Rule 277 is whether an otherwise proper instruction
is a direct comment on the weight of the evidence. That should be the only test. This
case presents the important issue of whether “nudging” and other concepts, which predate
the 1987 amendment of Rule 277, should be allowed to control and override the language
in Rule 277.
STATEMENT OF FACTS
I.
The Underlying Lawsuit
The court of appeals’ opinion correctly describes the underlying tort action. David
Goehring was fatally injured in an oilfield accident. His parents filed a lawsuit seeking
recovery for wrongful death against Kennedy Wire Rope & Sling Company (“Kennedy”)
and Newco Manufacturing Company, Inc. (“Newco”). Jamie Crenshaw (“Crenshaw”)
1
intervened, claiming to be David Goehring’s common-law wife. Following a settlement
by David Goehring’s parents, Crenshaw’s claims proceeded to trial.
II.
The Court’s Charge
The first question in the court’s charge asked the jury to determine whether David
Goehring and Crenshaw were a common-law husband and wife:
QUESTION 1
Were Jamie Crenshaw and David Goehring married at the
time of David Goehring’s death?
A man and a woman are married if they agreed to be married
and after the agreement they lived together in Texas as
husband and wife and represented to others that they were
married.
Represented to others means that both Jamie Crenshaw and
David Goehring represented to other people that they were
married. Mere isolated references to each other as husband
and wife does not amount to adequate evidence to prove that
they represented to others that they were married.
Answer “Yes” or “No.”
Answer:
No
Jury Charge, Question 1 (emphasis added) (Apx. Tab B).1
At trial Crenshaw’s counsel made three specific objections to this instruction: (1)
“this definition represented to others does not appear in the statute” and is legally
incorrect “because it says represented to others means both Jamie Crenshaw and David
Goehring”;2 (2) the instruction which begins “mere isolated references” is legally
1
The elements of a common-law marriage, a/k/a “informal marriage,” are set forth in Tex. Fam. Code § 2.401 (Apx.
Tab D).
2
This objection has since been abandoned on appeal and correctly so because the statute, and indeed the unobjected
to portion of Question No. 1, indicates both individuals must represent themselves as being married.
2
incorrect because it is “an embellishment of the statute,” no case “permits this
instruction,” and it is not contained in the Texas Pattern Jury Charge (“PJC”); and (3) the
instruction “mere isolated references constitute direct comments on the weight of the
evidence” and suggests “an opinion of the Court.”3
III.
Jury’s Verdict and the Trial Court’s Judgment
The jury failed to find the existence of a common-law marriage between David
Goehring and Jamie Crenshaw. Judgment was entered on the verdict that Crenshaw take
nothing4 (Apx. Tab A). Crenshaw appealed.5
IV.
Court of Appeals’ Result and Reasoning
The court of appeals affirmed the take-nothing judgment in Newco’s favor but
reversed the judgment as to Kennedy and remanded that portion of the case for a new
trial6 (Apx. Tab C). Without addressing whether the instruction was a correct statement
of the law, the court of appeals concluded that the instruction “nudged the jury in a
specific direction,” and was more than an incidental comment on the weight of the
evidence.7 Concluding that there was some evidence of all three elements of a commonlaw marriage, the court of appeals also rejected Kennedy’s argument that it was entitled
to a directed verdict on the existence of a common-law marriage.8
3
19 RR 21-23.
Court of Appeals’ opinion at 2010 WL 2601662, *2.
5
Id.
6
Id. at *14.
7
Id. at *4-5.
8
Id. at *5-6.
4
3
SUMMARY OF THE ARGUMENT
The trial court instructed the jury on a rule of law well-known to both counsel and
the courts: Isolated instances of referring to someone as “my wife” or “my husband” are
insufficient to establish the necessary public holding-out required to form a common-law
marriage.
Nine different opinions,9 including several from this Court, state that
proposition. Neither the court of appeals nor Crenshaw points to any legal authority to
the contrary. Nevertheless, the court of appeals concluded that the jury should not be
burdened with knowing that rule of law and because the jury was told that rule, this case
must be retried. That was wrong.
This Court recently held that “if an instruction might aid the jury in answering the
issues presented to them, or if there is any support in the evidence for an instruction, the
instruction is proper.” La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998) (per
curiam)(emphasis added). The court of appeals did not apply that rule. Instead, it applied
the pre-1987 amendment to Rule 277 holdings in Lemos v. Montez, 680 S.W.2d 798, 801
(Tex. 1984) and Acord v. General Motors Corporation, 669 S.W.2d 111, 116 (Tex. 1984).
It is now nearly impossible for the bench and bar to divine when a non-Pattern
Jury Instruction (PJC) can properly be given to the jury and when it cannot. This case
proves the point. The instruction at issue here was a correct statement of the law.
Crenshaw argued, and the court of appeals accepted, the proposition that if an instruction
is not approved by the PJC or approved in a reported appellate court opinion, it does not
belong in the court’s charge. That is not and should not be the correct rule of law.
9
The opinions are detailed infra under Section I.
4
Whether a given instruction is proper should in the first instance be determined by
the standard in Rule 277. That rule allows the trial court to submit proper instructions,
forbidding only those that directly comment on the weight of the evidence. Under Rule
277, the instruction in this case was proper. It did not directly comment on the weight of
any evidence by suggesting to the jury the trial court’s opinion on how it should answer
Question No. 1. If, in fact, the standard of review of a trial court’s ability to instruct the
jury is wide discretion, then the instruction given in this case was well within the trial
court’s discretion. The instruction assisted the jury in deciding a contested issue of law—
whether there was adequate proof presented that both Jamie Crenshaw and David
Goehring held themselves out to the public as husband and wife.
ARGUMENT
I.
The Jury Should Be Properly Instructed on the Law; the Jury Should Not Be
Kept in the Dark
A.
The jury should be told what both the court and the lawyers know to be
true—isolated references to someone in terms of “my wife” or “my
husband” are not adequate evidence of holding out each other to the public
as man and wife.
It is well established that isolated references, without more, are no evidence of a
holding-out. See Ex parte Threet, 333 S.W.2d 361, 364 (Tex. 1960) (“introduction of
defendant as her husband to two close friends, and telling two others that she was married
to defendant, constituted no evidence that plaintiff and Threet were living together as
husband and wife and holding themselves out to the public as man and wife.”); Estate of
Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981) (“isolated references have been
held, in some instances as a matter of law, not to have established a common law
5
marriage”); Nichols v. Lightle, 153 S.W.3d 563, 571 (Tex. App.—Amarillo 2004, no pet.)
(“At most, the statement reflects only isolated references, which is not evidence of
‘holding out’ to others that a marriage exists”); In re Estate of John J. Giessel, 734
S.W.2d 27, 31 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (“In Ex parte
Threet, cited by appellants, the court held that isolated references, without more, were no
evidence of a holding out”); Lee v. Lee, 981 S.W.2d 903, 907 (Tex. App.—Houston [1st
Dist.] 1998, no pet.) (same); Flores v. Flores, 847 S.W.2d 648, 653 (Tex. App.—Waco
1993, writ denied) (“an occasional use of the reference ‘wife’ or ‘husband’ cannot
support a finding of a holding-out”); Winfield v. Renfro, 821 S.W.2d 640, 651 (Tex.
App.—Houston [1st Dist.] 1991, writ denied) (“Threet and Giessel establish that
occasional introductions as husband and wife do not establish the element of holding
out”); Gary v. Gary, 490 S.W.2d 929, 934 (Tex. Civ. App.—Tyler 1973, writ ref’d n.r.e.)
(the occasional use of the reference “wife” or “husband” cannot support a finding of a
holding-out); Drummond v. Benson, 133 S.W.2d 154, 160 (Tex. Civ. App.—San Antonio
1939, writ ref’d) (“the isolated references, according to declarations attributed to Mary
Benson and C. O. Drummond, wherein one or the other referred to each other as husband
or wife, do not in our opinion satisfy the law establishing a common law marriage”).
B.
This instruction assisted the jury and Kennedy, like Crenshaw, was entitled
to a jury properly instructed on the law.
Kennedy, like Crenshaw, was entitled to a jury properly instructed on Texas law.
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000) (“It is fundamental to our
system of justice that parties have the right to be judged by a jury properly instructed in
6
the law.”). Ironically, by concluding the trial court erred in giving this instruction, the
court of appeals opens the door for Crenshaw to argue to the jury on retrial that mere
isolated instances are enough. Even worse, the opinion below pre-positions Crenshaw to
argue that proof of a couple of isolated instances is sufficient to support any affirmative
jury finding. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (“[I]t is the court’s
charge, not some other unidentified law, that measures the sufficiency of the evidence
when the opposing party fails to object to the charge.”).
Because jury charges are drafted for lay jurors untrained in the law, the language
is evaluated from the perspective of such a juror. Columbia Rio Grande Healthcare, L.P.
v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009). Lay persons would not instinctively
understand that under Texas law isolated instances of referring to someone as “my wife”
or “my husband” is not enough. The jury certainly would not know that to be the law
based upon nothing more than the pattern jury charge which, according to Crenshaw, is
the only instruction that the jury should be given (Apx. Tab E). If, as this Court stated in
Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006), the question on appeal is
“whether the request was reasonably necessary to enable the jury to render a proper
verdict,” then the instruction here was proper. It makes little sense to spend years
developing a rule of law for determining what is adequate proof of a public holding-out
and then not bother telling the jury about that rule. The jury’s role was to determine the
facts. But the jury cannot be expected to fulfill its role if it is kept in the dark on the law.
7
II.
The Court of Appeals Got It Wrong
A.
The correct standard is Rule 277.
Rule 277 directs trial courts of this state to “submit such instructions … as shall be
proper to enable the jury to render a verdict.” A proper instruction under Rule 277 is one
that (1) assists the jury; (2) accurately states the law; and (3) is supported by the pleadings
and evidence. Hawley, 284 S.W.3d at 855-56. The dispute in this appeal does not center
on either (2) or (3). Properly framed, the dispute in this case is over whether it assists the
jury in its fact-finding function to know what rule of law the courts and lawyers will follow
in assessing the adequacy of proof on that third element of a common-law marriage.
The trial court has “great latitude and considerable discretion to determine
necessary and proper jury instructions.” Knighten, 976 S.W.2d at 676. “If an instruction
might aid the jury in answering the issue presented to them, or if there is any support in
the evidence for an instruction, the instruction is proper.” Id.
Given the discretion
afforded a trial court to instruct the jury under Rule 277, this case should have been a
straight-forward case for affirmance.
B.
Where did the court of appeals go wrong?
The court of appeals gave a handful of reasons for its conclusion that the jury
should have been kept in the dark. Assuming without deciding that the instruction was
legally correct, the court of appeals concluded the instruction “nudged the jury in a
specific direction,” and “was more than an incidental comment on the weight of the
8
evidence.”10 In order for an instruction to be an impermissible direct comment on the
weight of the evidence, however, that instruction must “suggest to the jury the trial
court’s opinion on the matter.” H.E. Butt Grocery Company v. Bilotto, 985 S.W.2d 22, 24
(Tex. 1998). Under that standard, this instruction was not erroneous.
The instruction did not tell the jury, as Crenshaw suggests, that the trial court
believed Crenshaw’s evidence was insufficient. The instruction that was given leaves it
up to the jurors to make that decision. Crenshaw was free to argue that her proof was
much more than mere isolated instances. It was, however, the jury’s role to decide if the
instances of David Goehring referring to Jamie as his wife were merely isolated and not a
public representation of marriage. An impermissible direct comment would have been an
instruction that the testimony of Monty Hoffman and Sara Pagil amounts to nothing more
than isolated instances of holding out and is therefore not adequate proof that David
Goehring held himself as being married to Jaime Crenshaw. That would have been a
direct comment. But the trial court did not give that instruction. Instead, the trial court
instructed the jury on the correct rule of law, leaving the jury to determine if the
testimony of these two individuals, for example, presented more than isolated examples.
In make-weight reasoning that this instruction was an impermissible direct
comment, the court of appeals stated that because the instruction addressed only one of
the three elements of a common-law marriage, that alone made it a “nudging
instruction.”11 This contention cannot be taken seriously. The rule that a jury should be
10
11
Id. at *5.
Id.
9
properly instructed on the law cannot be overcome by a mere inability to conceive
additional instructions on all the other elements of a claim—even when not needed.
Next, the court of appeals reasoned that because the instruction singled out the
category of evidence of isolated instances and told the jury such evidence “does not”
constitute sufficient evidence, it both impermissibly favored the defense theory and
indicated the trial judge’s opinion “on the issue.”12 The flaw in the court’s reasoning here is
obvious. Isolated instances of holding-out “do not” constitute sufficient evidence of a
common-law marriage. That is the law. Whether the law favors one side or the other is
beside the point. The jury should be properly instructed on the law regardless of which side
receives the benefit of that proper instruction. If the court of appeals were correct, then this
Court’s conclusion in Hawley would be incorrect and the entire body of case law on
inferential rebuttal instructions flawed. Such instructions achieve the same intended result
of focusing the jury’s attention on particular evidence to the exclusion of other evidence.13
The last reason the court of appeals gave for finding error seems to be the trial
court’s failure to use the word “may” in the instruction, like what occurred in the Lewis
case.14 But the court of appeals never indicated how the instruction in this case could have
been crafted differently to use the word “may” and remain a correct statement. Under Texas
12
Id.
Inferential rebuttal instructions, by their nature, emphasize particular evidence. One can make the same argument
that Crenshaw made below regarding instructions on a “new and independent cause,” “sole cause,” “unavoidable
accident,” “act of god,” and “superseding cause.” Each is a component of “proximate cause,” and each focuses the
jury’s attention on particular evidence. The purpose of an inferential rebuttal issue is “to advise the jurors, in the
appropriate case, that they do not have to place blame on a [particular defendant] to the suit” if the true cause for the
accident lies elsewhere. Dew v. Crown Derrick Erectors, 208 S.W.3d 448, 450-51 (Tex. 2006) (quoting Dillard v.
Tex. Elec. Coop., 157 S.W.3d 429, 432 (Tex. 2005)). If those instructions are not improper nudging, tilting,
embellishment, surplusage or addendum, then why would the instruction in this case receive that characterization?
14
Lewis v. Anderson, 173 S.W.3d 556 (Tex. App.—Dallas 2005, pet. denied)
13
10
law, isolated instances do not constitute adequate evidence of holding out. Instructing the
jury that isolated instances may not constitute sufficient evidence is legally incorrect.15
The jury’s role was to determine whether Crenshaw presented adequate evidence
on the third element of a common-law marriage. The jury cannot fulfill that function
without knowing what is or is not adequate evidence. They need some guidance, or at
least to be told what is not adequate evidence. Under PJC 201.4, Crenshaw’s proffered
bare bones question on common-law marriage, or the eviscerated instructions the court of
appeals directs be given on remand, jurors are left without any guidance as to what is
adequate evidence of holding-out (Apx. Tab E). If later told their verdict was not
supported by adequate evidence because isolated instances of referring to someone as
“my wife” or “my husband,” are not enough, those same jurors would rightfully
complain, “the trial judge did not tell us that.”
III.
The Rules That Guide the Trial Court’s Exercise in Fashioning Instructions
to the Jury Are Confused and Conflicting
Ultimately, the court of appeals accepted Crenshaw’s argument that if an
instruction is not in the PJC and not approved in a reported opinion, it does not belong in
the court’s charge because that instruction necessarily tilts, nudges or improperly
embellishes upon the court’s charge. The “take away” bright-line rule from the opinion
below is that “wide discretion” means a lot less than it appears. Actually, a trial court
should not submit even correct statements of the law that assist the jury in its role as the
fact finder when the requested instruction is a non-pattern instruction and not approved in
15
Not to mention of no assistance.
11
a reported opinion because the trial court that does so risks being second-guessed on
appeal that the instruction improperly “nudges” or “tilts” or “embellishes.” That is
exactly what occurred here.
In fairness to the court of appeals, this area of the law is replete with a number of
different rules, holdings and results that are difficult to reconcile and apply.
Two
opinions in particular have been cited as support for a default bright-line rule that all
instructions not in the PJC or approved in a reported case should not be given.16
A.
Acord v. General Motors Corporation
Acord is the root of the often-repeated statement that the court’s charge should not
be embellished with surplus instructions.17 The disapproved instruction in Acord was
really five instructions—
A manufacturer is not an insurer of the product he designs,
and it is not required that the design adopted be perfect, or
render the product accident proof, or incapable of causing
injury, nor is it necessary to incorporate the ultimate safety
features in the product.
Acord, 669 S.W.2d at 113 (emphasis added).
The holding in Acord unnecessarily went beyond the issue presented, barring
litigants from deviating from the PJC in product liability design defect cases. Acord, 669
S.W.2d at 115-16 (“We explicitly approve the Pattern Jury Charges issue and instruction
16
Crenshaw also relied upon a third case from the First Court of Appeals. See Maddox v. Denka Chem. Corp., 930
S.W.2d 668, 671 (Tex. App.—Houston [1st Dist.] 1996, no writ). Relying upon Acord, the court of appeals in
Maddox rejected the inclusion in the court’s charge of two instructions on a landowner’s “duty,” despite the fact
that both instructions were taken from the holding in Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985).
The court of appeals reasoned that “duty” is an issue for the court, not the jury and, therefore, those statements did
not belong in the court’s charge. Telling a jury when a landowner does or does not owe a “duty” “tells the jury how
this case should come out, i.e., how it should vote, as a ‘general rule.’” Id. at 672. Because the instruction here did
not involve “duty,” Maddox is inappropriate.
17
Court of Appeals opinion at 2010 WL 2601662 at *5.
12
for design defect cases, and disapprove the addition of any other instructions in such cases,
however correctly they may state the law under § 402A of the Restatement (Second) of
Torts.”).18 Even if all five, albeit correct statements, constituted a direct comment on the
weight of the evidence, that does not necessarily mean one of the five would not.
Acord was a product liability design defect case. The statement that the jury “need
not and should not be burdened with surplus instructions,” should be read in the context
of the five instructions at issue in that case. Unfortunately, Acord has been applied
beyond product liability cases and even the wording of the instruction in that case. The
clear import from the court of appeals’ reliance on Acord is that if a requested instruction
has neither been approved by the PJC nor approved by an appellate court, it is necessarily
an improper embellishment irrespective of Rule 277.19 That cannot be the law.
B.
Lemos v. Montez
Lemos is the source of the statement that even a correct statement of the law
should not be submitted if the instruction constitutes a comment on the weight of the
evidence or impermissibly tilts or nudges the jury one way or the other. But Lemos was
decided before the amendment to Rule 277 in 1987.
Although the broad form
submission directive in Lemos was included in the changes made to Rule 277, the
language on “nudging” and “tilting” was not.20
18
Instead, the language in Rule 277
The seminal holding in Acord that “the jury is not to be instructed with balancing factors” in a strict liability
design defect case further can no longer be squared with this Court’s recent holding in Timpte Indus., Inc. v. Gish,
286 S.W.3d 306, 312 (Tex. 2009) (“Texas courts have long applied a risk-utility analysis that requires consideration
of the following factors….”).
19
Court of Appeals opinion at 2010 WL 2601662 at *5.
20
See “History of TRCP 277.”
13
differentiates between direct and incidental comments on the weight of the evidence. The
former is improper; the latter is not.
Lemos involved an inferential rebuttal issue. The defendant, Montez, requested
and received the standard “unavoidable accident” instruction to which was added a
further instruction, “[T]he mere happening of a collision of motor vehicles is not
evidence of negligence.”
Lemos, 680 S.W.2d at 799.
This Court concluded the
instruction was improper because: (1) under the case facts, an unavoidable accident
instruction should not have been given; (2) the additional language embellished upon the
PJC instruction of unavoidable accident instruction approved in Dallas Railway &
Terminal Co. v. Bailey, 250 S.W.2d 379, 385 (Tex. 1952); and (3) the instruction was just
flat wrong because “backing blindly into a vehicle that is lawfully headed in the right
direction can be some evidence of negligence.” Lemos, 608 S.W.2d at 801. To that
discussion, this Court added the statement that “this Court has treated addenda to the
charge as impermissible comments that tilt or nudge the jury one way or the other.” Id.
This last aspect of Lemos is problematic for a variety of reasons. Determining
whether an instruction is a direct comment or whether it nudges or tilts are not
necessarily the same. Lemos uses terms not found in the subsequently adopted Rule 277.
Moreover, when is an instruction improper “addenda”? The terms “nudge” and “tilt” are
hardly models of clarity in and of themselves. If one attempted to reconcile the terms
“nudge” and “tilt” as the practical application of “comment on the weight of the
evidence,” then incidental “nudging” and “tilting” instructions should be okay. But the
cases do not make that distinction.
14
C.
Can the court of appeals’ application of Acord and Lemos be reconciled
with the more recent precedents of this Court?
The instruction recently approved in Hawley was much more of an embellishment
or nudge than the instruction in this case. It was in a different league. In Hawley, 284
S.W.3d at 860, this Court concluded it was error not to instruct the jury that “Alice H.
Hawley must have had greater than a fifty percent (50%) chance of survival on
November 28, 2000 for the negligence of Rio Grande Regional Hospital to be a
proximate cause of injury to Alice H. Hawley.” In doing so, this Court rejected a similar
argument by Hawley, who also relied upon Lemos v. Montez for the proposition that the
court’s charge “should not have been embellished because it tracked the language of the
pattern jury charge.” Id. at 859. Every single rationale given by the court of appeals for
rejecting the instruction in this case could have been leveled equally to that instruction.
Nevertheless, this Court held that instruction should have been given.
IV.
Why Clarity Is Needed
This case squarely presents the opportunity to address, reconcile, or overrule the
surplusage of standards that exist outside of Rule 277 for determining when an
instruction is proper or improper.
The guidelines should be clear and capable of
objective application by the bench and bar.
PRAYER
Petitioner Kennedy Wire Rope & Sling Company prays that this Court grant its
Petition for Review and, upon review, reverse the judgment of the court of appeals and
render judgment affirming the trial court’s judgment.
15
Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS, L.L.P.
By: /s/ Michael W. Eady
Michael W. Eady
State Bar No. 06332400
Wade C. Crosnoe
State Bar. No.00783903
701 Brazos, Suite 1500
Austin, Texas 78701
Telephone: (512) 703-5084
Telecopy: (512) 708-8777
Counsel for Petitioner Kennedy Wire Rope & Sling
Company
16
CERTIFICATE OF SERVICE
I certify that on September 10, 2010, a true and correct copy of this petition was
served on the following counsel by certified mail, return receipt requested and by
electronic delivery:
Steve T. Hastings
Henry Blackmon
Hastings Law Firm
101 N. Shoreline Boulevard, Suite 300
Corpus Christi, Texas 78401
Timothy Patton
Timothy Patton, P.C.
11 Lynn Batts Lane, Suite 120
San Antonio, Texas 78218
David Stephenson
Geoffrey N. Courtney
Kathryn A. Stephens
Clemens & Spencer, P.C.
112 East Pecan Street, Suite 1300
San Antonio, Texas 78205-1512
/s/ Michael W. Eady
Michael W. Eady
17
APPENDIX
APPENDIX
TAB A
CAUSE NO. DC-07- 172
JAMIE CRENSHAW,
Plaintiff,
IN THE DISTRICT COURT OF D.;
bILED AT & ~ ' c L o ~ ' ( ~ ~
VS.
KENNEDY WIRE ROPE & SLING
COMPANY AND NEWCO
MANUFACTURING COMPANY, INC.
Defendants.
229TH JUDICIAL DISTRICT
FINAL JUDGMENT ON JURY VERDICT
TO THE HONORABLE JUDGE OF SAID COURT:
ON the 12&day of January, 2009 the above-numbered and styled cause was called
for trial by jury. The parties appeared in person and by their attorneys of record and
announced ready for trial. A jury of twelve (12) good and lawful persons were selected
and duly sworn to try this cause. The evidence was introduced. At the conclusion of the
evidence, the case was submitted to the jury upon jury questions on March 2,2009. The
jury, on March 2,2009, returned in open court their verdict.
The jury's verdict was received in open court, and the court inquired of the jury
whether the same was their verdict and the jury answered through their Presiding Juror
that it was.
The verdict was received and ordered filed. It appears to the court, from the
verdict of the jury and evidence admitted at trial, that Plaintiff should take nothing fkom
Defendants.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court
that Plaintiff take nothing from Defendants, Kennedy Wire Rope & Sling Company and
Newco Manufacturing Company, Inc., and the Defendants are entitled to recover their
costs from Plaintiff for which let execution issue unless the same be timely paid.
Any and all relief requested by any party and not expressly granted is DENIED.
SIGNED this
7'
day of
,2009.
JUDGE ALEX W. GABERT
APPROVED AS TO FORM:
Clemens & Spencer
112 E. Pecan Street, Suite 1500
/
San Antonio, Texas 78205
State B ~ N O19163500
.
ATTORNEYS FOR DEFENDANT
NEWCO MANUFACTURING
COMPANY, INC.
03-27-' 09 15: 26 FROM-Hastings Law Firm
361-692-2001
Mar,Ig. ..~uuy.:.':"[5'li6rm
I;.-cnens a n d S p e n c e r L I U L L F u I j 1
L-
APPENDIX
TAB B
ORIGINAL
CAUSE NO. DC-07-172
JAMIE CRENSHAW,
Plaintiff
§
§
§
IN THE DISTRICT COURT OF
ntm A=,W~MZM
6
MAR
0 2 2009
VS.
5
KENNEDY WIRE ROPE & SLING
COMPANY, AND NEWCO
MANUFACTURING COMPANY, INC.
Defendants
DUVAL COUPTY, TEXAS
[
§
5
5
6
8
!
F~ED
A T ~ W C L O & ~ @
MAR 0 2 2009
229thJUDICIAL
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters of law, you must be governed
by the instructions in this charge. In discharging your responsibility on this jury, you will observe
all the instructions which have previously been given you. I shall now give you additional
instructions which you should carefully and strictly follow during your deliberations.
1.
Do not let bias, prejudice or sympathy play any part in your deliberations.
In arriving at your answers, consider only the evidence introduced here under
oath and such exhibits, if any, as have been introduced for your consideration under the
rulings of the court, that is, what you have seen and heard in this courtroom, together with
the law as given you by the court. In your deliberations, you will not consider or discuss
anything that is not represented by the evidence in this case.
2.
3.
Since every answer that is required by the charge is important, no juror should
state or consider that any required answer is not important.
4.
You must not decide who you think should win, and then try to answer the
questions accordingly. Simply answer the questions, and do not discuss nor concern
yourselves with the effect of your answers.
5.
You will not decide the answer to a question by lot or by drawing straws, or
by any other method of chance. Do not return a quotient verdict. A quotient verdict means
that the jurors agree to abide by the result to be reached by adding together each juror's
figures and dividing by the number ofjurors to get an average. Do not do any trading on your
answers; that is, one juror should not agree to answer a certain question one way if others
will agree to answer another question another way.
6.
Unless otherwise instructed,you may answer a question upon the vote of ten
or more jurors. If you answer more than one question upon the vote of ten or more jurors, the
same group of at least ten of you must agree upon the answers to each of those questions.
-
These instructions are given vou because vour conduct is subiect to review the same as that
of the witnesses, parties, attorneys and the judge. If it shouldbe found that you have disregarded any
iurvmisconduct
and it may- require another trial by another jury; then
of these instructions, it will be .
all of our time will have been wasted.
A
The presiding juror or any other who observes a violation of the court"s instructions shall
immediately warn the one who is violating the same and caution the juror not to do so again.
When words are used in this charge in a sense that varies from the meaning commonly
understood, you are given a proper legal defmition, which you are bound to accept in place of any
other meaning.
Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must
be based on apreponderance of the evidence unless you are otherwise instructed. If you do not find
that a preponderance of the evidence supports a "Yes" answer, then answer "No." The term
"preponderance of the evidence" means the greater weight and degree of credible evidence admitted
in this case. Whenever a question requires an answer other than "Yes" or "No," your answer must
be based on a preponderance of the evidence unless you are otherwise instructed.
"Producing cause" means a cause that was a substantial factor in bringing about the
occurrence, and without which the occurrence would not have occurred. There may be more than
one producing cause.
"Proximate cause" means that cause which, in a natural and continuous sequence, produces
an event, and without which cause such event would not have occurred. In order to be a vroximate
cause, the act or omission complained of must be such that aperson using ordinary care would have
foreseen that the event, or some similar event, might
- reasonably result therefrom. There maybe more
than one proximate cause of an event.
"Negligence" means failure to use ordinary care, that is, failing to do that which a person of
ordinary prudence would have done under the same or similar circumstances or doing that which a
person of orbnary prudence would not have done under the same or similar circumstances.
In consideringnegligence,do not consider any act or omission that constitutes amere failure
to discover or guard against a product defect.
"Ordinary care" means that degree of care that would be used by a person of ordinary
prudence under the same or similar circumstances.
You are further instructed that a fact may be established by direct evidence or by
circumstantial evidence or both. A fact is established by direct evidence when proved by
documentary evidence or by witnesses who saw the act done or heard the words spoken. A fact is
established by circumstantialevidence when it may be fairly and reasonably inferred fcom other facts
proved.
After you retire to the jury room, you will select your own presidingjuror. The first thing the
presiding juror will do is to have this complete charge read aloud and then you will deliberate upon
your answers to the questions asked.
It is the duty of the presiding juror----
1.
to preside during your deliberations,
2.
to see that your deliberations are conducted in an orderly manner and in
accordance with the instructions in this charge,
3.
to write out and hand to the bailiff any communications concerning the case
that you desire to have delivered to the judge,
4.
to vote on the questions,
5.
to write y o u answers to the questions in the spaces provided, and
6.
to certify to your verdict in the space provided for the presiding juror's
signature or to obtain the signatures of all the jurors who agree with the
verdict if your verdict is less than unanimous.
You shouldnot discuss the case with anyone, not even withother members ofthe jury, unless
all of you are present and assembled in the jury room. Should anyone attempt to talk to you about
the case before the verdict is returned, whether at the courthouse, at your home, or elsewhere, please
inform the judge of this fact.
When vou have answered all the auestions vou are required
to answer under the instructions
*
of the judge and your presiding juror has placed your answers in the spaces provided and signed the
verdict as presiding--juror or obtained the signatures,
. you
- will inform the bailiff at the door of the -iuryroom that you have reached a verdict, and then you will return into court with your verdict.
hJ .
k*
JUDGE PRESIDING
QUESTION 1
Were Jamie Crenshaw and David Goehring married at the time of David Goehring's death?
A man and a woman are married if they agreed to be married and after the agreement they
lived together in Texas as husband and wife and represented to others that they were married.
Represented to others means that both Jamie Crenshaw and David Goehnng represented to
other people that they were married. Mere isolated references to each other as husband and
wife does not amount to adequate evidence to prove that they represented to others that they
were married.
Answer "Yes" or 'No."
Answer:
r\in
If you have answered "Yes" to Question No. 1, then answer the following questions
Otherwise, do not answer the following questions.
QUESTION 2
Was there a design defect in the choker hook at the time it left the possession of Newco
Manufacturing Company, Inc. that was a producing cause of the occurrence in question?
A "design defect" is acondition of theproduct that renders it unreasonably dangerous
as designed, taking into consideration the utility of the product and the risk involved
in its use. For a design defect to exist there must have bken a safer alternative design.
"Safer alternative design" means a product design other than
the one actually used that in reasonable probabilitywould have prevented or significantly reduced the risk of the occurrence in question
(1)
without substantially impairing the product's utility and
was economically and technologically feasible at the time the product left the control
2)
of Newco Manufacturing Company, Inc. by the application of existing or reasonably
achievable scientific knowledge.
Answer "Yes" or "No."
Answer:
QUESTION 3
Was there a design defect in the wire rope sling at the time it left the possession of Kennedy
Wire Rope and Sling Company that was a producing cause of the occurrence in question?
A "design defect" is a condition of the product that renders it unreasonably
dangerous as designed, taking into consideration the utility of the product and
the risk involved in its use. For a design defect to exist there must have been
a safer altemative design.
"Safer altemative design"means aproduct design other than the one actually
used that in reasonable probabilitywould have prevented or significantly reduced the risk of the
(1)
occurrence in question without substantially impairing the product's utility
and
was economically and technologically feasible at the time the product
(2)
left the control of Kennedy Wire Rope and Sling Company by the
application of existing or reasonably achievable scientific knowledge.
Answer "Yes" or "No."
Answer:
If you have answered "Yes" to Questions 2 or 3, then answer the following question.
Otherwise, do not answer the following question.
QUESTION NO. 4
Did the negligence, if any, of those named below proximately cause the occurrence in
question?
Answer "Yes" or "No" for each of the following:
a.
Helmerich & Payne International Drilling
b.
David Goehring
If you have answered "Yes" to Questions 2 , 3 or 4 as to more than one of those named
below, then answer the following question. Otherwise, do not answer the following question.
The percentages you find must total 100 percent. The percentages must be expressed in whole
numbers. The responsibility attributable to any one named below is not necessarily measured by the
number of acts or omissions found. The percentage attibutable to any one need not be the same
percentage attributed to that one in answering another question.
QUESTION 5
What percentage of the responsibility that caused the occurrence do you find to be attributable to
each of those listed below and found by you in your answer to Questions 2 , 3 or 4, to have been
responsible for the occurrence in question?
a.
Newco Manufacturing Company
%
b.
Kennedy Wire Rope and Sling Company
%
c.
Helmerich & Payne International Drilling
%
d.
David Goehring
%
Total
100
%
QUESTION 6
What sum of money, if paid now in cash, would fairly and reasonably compensate Jamie
Crenshaw for her damages, if any, that resulted from the death of David Goehring?
Consider the elements of damages listed below and none other. Consider each element
separately. Do not award any sum ofmoney on any element if you have otherwise, under some other
element, awarded a sum of money for the same loss. That is, do not compensate twice for the same
loss, if any. Do not include interest on any amount of damages you find.
Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if
any, in your answers because of the negligence, if any, of David Goehnng.
a.
Pecuniary loss sustained in the past.
"Pecuniary loss" means the loss of the care, maintenance, support, services, advice,
counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that Jamie
Crenshaw, in reasonable probability, would have received from David Goehring had he lived.
Answer:
b.
Pecuniary loss that, in reasonable probability, will be sustained in the future.
Answer:
c.
Loss of companionship and society sustained in the past.
"Loss of companionship and society" means the loss of the positive benefits flowing from
the love, comfort, companionship, and societythat Jamie Crenshaw, inreasonableprobability,would
have received from David Goehring had he lived.
Answer:
d.
Loss of companionship and society that, in reasonable probability, will be
sustained in the future.
Answer:
e.
Mental anguish sustained in the past.
"Mental anguish" means the emotional pain, torment, and suffering experienced by Jamie
Crenshaw because of the death of David Goehring.
Answer:
f.
Mental anguish that, in reasonable probability, will be sustained in the future.
Answer:
In determiningdamagesfor elements c, d, e, andJ youmay consider the relationshipbetween
Jamie Crenshaw and David Goehring, their living arrangements, any extended absences from one
another, the harmony of their family relations, and their common interests and activities.
We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same into court as our verdict.
(To be signed by the presiding juror if the jury is unanimous.)
e
G o m d7
Printed ~ a mofi Presiding Juror
(To be signed by those rendering the verdict if the jury is not unanimous.)
Jurors' Signatures
Jurors' Printed Names
APPENDIX
TAB C
Page 1
--- S.W.3d ----, 2010 WL 2601662 (Tex.App.-San Antonio)
(Cite as: 2010 WL 2601662 (Tex.App.-San Antonio))
Only the Westlaw citation is currently available.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS
SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeals of Texas,
San Antonio.
Jamie CRENSHAW, Appellant/Cross-Appellee
v.
KENNEDY WIRE ROPE & SLING COMPANY
and Newco Manufacturing Company, Inc., Appellees/Cross-Appellants.
No. 04-09-00410-CV.
June 30, 2010.
Background: Parents of worker brought wrongful
death action against manufacturers of wire rope sling
and hook used on drilling rig. Following intervention
by worker's purported common law wife as plaintiff,
and settlement between parents and manufacturers,
the 229th Judicial District Court, Duval County, Alex
William Gabert, J., entered take-nothing judgment on
jury verdict against purported wife. Purported wife
appealed.
Holdings: The Court of Appeals, Phylis J. Speedlin,
J., held that:
(1) jury instruction on issue of common law marriage
was improper comment on weight of evidence;
(2) error in issuing instruction was harmful;
(3) issue of whether worker and purported wife represented to others in state that they were married was
for jury;
(4) manufacturer of hook was not liable to purported
wife for product liability; but
(5) issue of whether sling manufacturer defectively
designed sling was for jury.
Affirmed in part, reversed in part, and remanded.
West Headnotes
[1] Trial 388
388 Trial
388VII Instructions to Jury
388VII(C) Form, Requisites, and Sufficiency
388k231 Sufficiency as to Subject-Matter
388k232 In General
388k232(1) k. In general. Most Cited
Cases
Trial 388
250
388 Trial
388VII Instructions to Jury
388VII(D) Applicability to Pleadings and
Evidence
388k249 Application of Instructions to
Case
388k250 k. In general. Most Cited
Cases
A jury instruction is proper if it: (1) assists the jury;
(2) accurately states the applicable law; and (3) is
supported by the pleadings and evidence.
[2] Trial 388
182
388 Trial
388VII Instructions to Jury
388VII(A) Province of Court and Jury in
General
388k182 k. Authority to instruct jury in
general. Most Cited Cases
Trial 388
349(2)
388 Trial
388IX Verdict
388IX(B) Special Interrogatories and Findings
388k349 Power and Duty of Court to Require Special Findings
388k349(2) k. Discretion of court. Most
Cited Cases
A trial court is afforded more discretion when submitting instructions than when submitting jury questions.
232(1)
[3] Appeal and Error 30
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
969
Page 2
--- S.W.3d ----, 2010 WL 2601662 (Tex.App.-San Antonio)
(Cite as: 2010 WL 2601662 (Tex.App.-San Antonio))
30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court
30k969 k. Conduct of trial or hearing in
general. Most Cited Cases
The Court of Appeals reviews the trial court's decision to submit a particular jury instruction for an
abuse of discretion.
30XVI(J) Harmless Error
30XVI(J)18 Instructions
30k1067 k. Failure or refusal to charge.
Most Cited Cases
The Court of Appeals reviews the entire record to
determine whether the jury submission or refusal to
submit an instruction probably resulted in an improper judgment.
[7] Marriage 253
[4] Appeal and Error 30
30 Appeal and Error
30XVI Review
30XVI(H) Discretion of Lower Court
30k944 Power to Review
30k946 k. Abuse of discretion. Most
Cited Cases
A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any
guiding principles.
[5] Appeal and Error 30
1064.1(1)
30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error
30XVI(J)18 Instructions
30k1064 Prejudicial Effect
30k1064.1 In General
30k1064.1(1) k. In general. Most
Cited Cases
A jury instruction error is generally considered harmful if it relates to a contested, critical issue.
[6] Appeal and Error 30
1064.1(1)
30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error
30XVI(J)18 Instructions
30k1064 Prejudicial Effect
30k1064.1 In General
30k1064.1(1) k. In general. Most
Cited Cases
Appeal and Error 30
30 Appeal and Error
30XVI Review
20(1)
946
1067
253 Marriage
253k20 Marriage by Mutual Agreement
253k20(1) k. In general. Most Cited Cases
Marriage 253
22
253 Marriage
253k22 k. Marriage by cohabitation and reputation. Most Cited Cases
A common law marriage has three requirements: (1)
the parties agreed to be married; (2) the parties lived
together in the State as husband and wife after they
agreed to be married; and (3) the parties represented
to others that they were married. V.T.C.A., Family
Code § 2.401(a)(2).
[8] Appeal and Error 30
232(3)
30 Appeal and Error
30V Presentation and Reservation in Lower Court
of Grounds of Review
30V(B) Objections and Motions, and Rulings
Thereon
30k232 Scope and Effect of Objection
30k232(3) k. Instructions. Most Cited
Cases
Purported common law wife of worker who was fatally injured in workplace accident preserved for appeal her argument that trial court erred in submitting
jury instruction regarding common law marriage, in
wrongful death action against manufacturers of items
used at worker's place of employment, where purported wife objected to issuance of instruction on
same grounds raised on appeal, and requested different instruction from trial court.
[9] Trial 388
186
388 Trial
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388VII Instructions to Jury
388VII(A) Province of Court and Jury in
General
388k186 k. Comments by judge on evidence in general. Most Cited Cases
To constitute a comment on the weight of the evidence, the jury instruction must indicate the trial
judge's opinion on the truth of the matter in question.
[10] Trial 388
186
388 Trial
388VII Instructions to Jury
388VII(A) Province of Court and Jury in
General
388k186 k. Comments by judge on evidence in general. Most Cited Cases
The mere fact that an instruction is a correct statement of the law does not mean it should be included
in the jury instruction, and does not prevent it from
being an improper comment on the weight of the
evidence.
[11] Trial 388
186
388 Trial
388VII Instructions to Jury
388VII(A) Province of Court and Jury in
General
388k186 k. Comments by judge on evidence in general. Most Cited Cases
Jury instruction, on issue of common law marriage,
providing that “mere isolated references to each other
as husband and wife does not amount to adequate
evidence to prove that they represented to others that
they were married,” was improper comment on
weight of evidence, in wrongful death action by purported common law wife of worker against manufacturers of items used at worker's place of employment;
instruction was direct comment on “holding out”
element of statutory claim of common law marriage
on which purported wife had burden of proof, and
favored defensive theory that there was no evidence
on such element. V.T.C.A., Family Code §
2.401(a)(2); Vernon's Ann.Texas Rules Civ.Proc.,
Rule 277.
[12] Appeal and Error 30
30 Appeal and Error
1064.1(9)
30XVI Review
30XVI(J) Harmless Error
30XVI(J)18 Instructions
30k1064 Prejudicial Effect
30k1064.1 In General
30k1064.1(9) k. Evidence and
witnesses, instructions relating to. Most Cited Cases
Trial court's error in issuing jury instruction regarding
common law marriage that was improper comment
on weight of the evidence, in wrongful death action
by purported common law wife of worker against
manufacturers of items used at worker's place of employment, probably caused rendition of improper
verdict and therefore was harmful; instruction definitively instructed jury that certain category of evidence on contested, critical element of common law
marriage was flatly inadequate. V.T.C.A., Family
Code § 2.401(a)(2); Vernon's Ann.Texas Rules
Civ.Proc., Rule 277; Rules App.Proc., Rule 44.1(a).
[13] Trial 388
139.1(14)
388 Trial
388VI Taking Case or Question from Jury
388VI(A) Questions of Law or of Fact in
General
388k139.1 Evidence
388k139.1(5) Submission to or Withdrawal from Jury
388k139.1(14) k. Sufficiency to present issue of fact. Most Cited Cases
Trial 388
139.1(17)
388 Trial
388VI Taking Case or Question from Jury
388VI(A) Questions of Law or of Fact in
General
388k139.1 Evidence
388k139.1(5) Submission to or Withdrawal from Jury
388k139.1(17) k. Insufficiency to
support other verdict; conclusive evidence. Most
Cited Cases
Trial 388
141
388 Trial
388VI Taking Case or Question from Jury
388VI(A) Questions of Law or of Fact in
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General
ing. V.T.C.A., Family Code § 2.401(a)(2).
388k141 k. Uncontroverted facts or evidence. Most Cited Cases
A directed verdict for a defendant may be proper in
two situations: (1) when a plaintiff fails to present
evidence raising a fact issue essential to the plaintiffs
right to recover, and (2) when the plaintiff either admits or the evidence conclusively establishes a defense to the plaintiff's cause of action.
[14] Appeal and Error 30
866(3)
30 Appeal and Error
30XVI Review
30XVI(A) Scope, Standards, and Extent, in
General
30k862 Extent of Review Dependent on
Nature of Decision Appealed from
30k866 On Appeal from Decision on
Motion for Dismissal or Nonsuit or Direction of Verdict
30k866(3) k. Appeal from ruling on
motion to direct verdict. Most Cited Cases
The Court of Appeals reviews a challenge to a trial
court's denial of a motion for directed verdict the
same as the Court would review a challenge to the
legal sufficiency of the evidence.
[15] Death 117
75
117 Death
117III Actions for Causing Death
117III(G) Evidence
117k74 Weight and Sufficiency of Evidence
117k75 k. In general. Most Cited Cases
Marriage 253
50(1)
253 Marriage
253k50 Weight and Sufficiency of Evidence
253k50(1) k. In general. Most Cited Cases
Finding that worker and purported common law wife
agreed to be married, as required for finding that
common law marriage existed, in wrongful death
action by purported common law wife of worker
against manufacturers of items used at worker's place
of employment, was supported by sufficient evidence, including evidence that worker and purported
wife agreed to be married several months after dat-
[16] Marriage 253
20(1)
253 Marriage
253k20 Marriage by Mutual Agreement
253k20(1) k. In general. Most Cited Cases
To establish an agreement to be married, as required
for common law marriage, the evidence must show
the parties intended to have a present, immediate, and
permanent marital relationship and that they did in
fact agree to be husband and wife. V.T.C.A., Family
Code § 2.401(a)(2).
[17] Marriage 253
50(1)
253 Marriage
253k50 Weight and Sufficiency of Evidence
253k50(1) k. In general. Most Cited Cases
An agreement to be married, as required for common
law marriage, may be established by direct or circumstantial evidence. V.T.C.A., Family Code §
2.401(a)(2).
[18] Marriage 253
50(2)
253 Marriage
253k50 Weight and Sufficiency of Evidence
253k50(2) k. Testimony of parties or witnesses. Most Cited Cases
The unchallenged testimony of one of the parties to
the purported common law marriage constitutes direct evidence the parties agreed to be married and
amounts to more than a scintilla, for purpose of a
sufficiency review of the evidence with regard to a
claim of common law marriage. V.T.C.A., Family
Code § 2.401(a)(2).
[19] Marriage 253
50(5)
253 Marriage
253k50 Weight and Sufficiency of Evidence
253k50(5) k. Cohabitation and reputation.
Most Cited Cases
The conduct of the parties as well as proof of cohabitation and representations to others may constitute
circumstantial evidence of an agreement to be married, as required for common law marriage, depending upon the facts of the case. V.T.C.A., Family Code
§ 2.401(a)(2).
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117 Death
117III Actions for Causing Death
117III(G) Evidence
117k74 Weight and Sufficiency of Evidence
117k75 k. In general. Most Cited Cases
253 Marriage
253k50 Weight and Sufficiency of Evidence
253k50(5) k. Cohabitation and reputation.
Most Cited Cases
Holding out, as required for common law marriage,
may be proven by evidence of the conduct and actions of the parties. V.T.C.A., Family Code §
2.401(a)(2).
Marriage 253
[23] Products Liability 313A
[20] Death 117
75
50(5)
253 Marriage
253k50 Weight and Sufficiency of Evidence
253k50(5) k. Cohabitation and reputation.
Most Cited Cases
Finding that worker and purported common law wife
cohabited, as required for finding that common law
marriage existed, in wrongful death action by purported common law wife of worker against manufacturers of items used at worker's place of employment,
was supported by sufficient evidence, including evidence that worker and purported wife lived together
for almost two years prior to worker's death, and that
worker kept his possessions at residence with purported wife. V.T.C.A., Family Code § 2.401(a)(2).
[21] Death 117
103(.5)
117 Death
117III Actions for Causing Death
117III(I) Trial
117k103 Questions for Jury
117k103(.5) k. In general. Most Cited
Cases
Marriage 253
51
253 Marriage
253k51 k. Questions for jury. Most Cited Cases
Issue of whether worker and purported common law
wife represented to others in state that they were married, as required for finding that common law marriage existed, was for jury, in wrongful death action
by purported wife against manufacturers of items
used at worker's place of employment. V.T.C.A.,
Family Code § 2.401(a)(2).
[22] Marriage 253
50(5)
119
313A Products Liability
313AII Elements and Concepts
313Ak118 Nature of Product and Existence of
Defect or Danger
313Ak119 k. In general. Most Cited Cases
Products Liability 313A
131
313A Products Liability
313AII Elements and Concepts
313Ak126 Design
313Ak131 k. Components. Most Cited
Cases
Products Liability 313A
235
313A Products Liability
313AIII Particular Products
313Ak235 k. Miscellaneous machines, tools,
and appliances. Most Cited Cases
Manufacturer of hook, which was component of allegedly defective wire rope sling used at worker's
place of employment, was not liable in product liability action arising out of worker's fatal accident, as
nothing indicated that hook itself was defective, or
that manufacturer participated in integration of hook
into final sling product.
[24] Products Liability 313A
131
313A Products Liability
313AII Elements and Concepts
313Ak126 Design
313Ak131 k. Components. Most Cited
Cases
A component part which is not itself defective and is
appropriate for certain other applications does not
become defective simply because it was used in an
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inappropriate application.
OPINION
[25] Products Liability 313A
235
313A Products Liability
313AIII Particular Products
313Ak235 k. Miscellaneous machines, tools,
and appliances. Most Cited Cases
Products Liability 313A
406
313A Products Liability
313AIV Actions
313AIV(D) Questions of Law or Fact
313Ak406 k. Design defect. Most Cited
Cases
Issue of whether manufacturer's wire rope sling used
at worker's place of employment was defectively
designed so as to be unreasonably dangerous was for
jury, in products liability action. V.T.C.A., Civil
Practice & Remedies Code § 82.001(4).
[26] Products Liability 313A
129
313A Products Liability
313AII Elements and Concepts
313Ak126 Design
313Ak129 k. Risk-utility test. Most Cited
Cases
The Court of Appeals conducts the “risk-utility
analysis, which is used in products liability actions to
determine whether a product was defectively designed so as to render it unreasonably dangerous,
within the context of the product's intended use and
its intended users.
Timothy Patton, Timothy Patton, P.C., San Antonio,
TX, Steve T. Hastings, Henry Blackmon, Hastings
Law Firm, Corpus Christi, TX, for Appellant.
David Stephenson, Kathryn A. Stephens, Geoffrey N.
Courtney, Clemens & Spencer, P.C., San Antonio,
TX, Michael W. Eady, Thompson, Coe, Cousins &
Irons, L.L.P., Austin, TX, David McFarland, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX, for
Appellee.
Sitting: SANDEE BRYAN MARION, Justice,
PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
*1 Jamie Crenshaw appeals a take-nothing judgment
rendered against her, arguing the trial court erred in
submitting its jury instruction on common law marriage, and that such instruction was harmful. In a
cross-appeal, Kennedy Wire Rope & Sling Company and Newco Manufacturing Company, Inc. complain the trial court erred in denying their motions for
directed verdict on the issues of common law marriage and products liability. We must decide whether
the jury instruction on common law marriage was an
improper comment on the weight of the evidence
and, if improper, whether it was harmless because the
defendants were entitled to directed verdicts on the
holding out element of common law marriage and on
the issue of liability.
BACKGROUND
David Goehring was fatally injured while working as
a floorhand on a drilling rig operated by his employer
Helmerich & Payne International Drilling Company
(“H & P”). Goehring was moving two casing bails
with the use of a braided wire rope sling. The sling
was attached to the bail by a sliding choker hook
while the other end was connected to the hoist on the
rig. The accident occurred when the bails disengaged
from the sling and struck Goehring. Goehring's parents filed a wrongful death suit against the manufacturer of the sling, Kennedy Wire Rope & Sling
Company (“Kennedy”) as well as the manufacturer of
the sliding choker hook, Newco Manufacturing
Company, Inc. (“Newco”), alleging that the sling and
hook were defectively designed. Jamie Crenshaw
intervened in the death action, alleging she was Goehring's common law wife. Goehring's parents subsequently settled with Kennedy and Newco, leaving
Crenshaw's claims to proceed to trial.
At trial, the issue of whether a common law marriage
existed between Crenshaw and Goehring was
strongly contested. At the close of the evidence,
Newco and Kennedy moved for directed verdict on
the issues of common law marriage and products
liability. The trial court denied the motions for directed verdict and submitted the case to the jury. The
first question in the court's charge related to the issue
of common law marriage and was submitted as fol-
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lows:
A. Applicable Law and Standard of Review
Were Jamie Crenshaw and David Goehring married at the time of David Goehring's death?
[1][2] Rule 277 of the Texas Rules of Civil Procedure
states:
A man and a woman are married if they agreed to
be married and after the agreement they lived together in Texas as husband and wife and represented to others that they were married.
In all jury cases the court shall, whenever feasible,
submit the cause upon broad-form questions. The
court shall submit such instructions and definitions
as shall be proper to enable the jury to render a
verdict.
Represented to others means that both Jamie
Crenshaw and David Goehring represented to
other people that they were married. Mere isolated
references to each other as husband and wife does
not amount to adequate evidence to prove that they
represented to others that they were married.
(Emphasis added). Crenshaw objected to the italicized portion of the charge on the grounds that the
instruction: (1) submitted language that does not appear in the statutory definition of common law marriage; (2) improperly embellished a statutory claim
with unnecessary language despite the Texas Supreme Court having repeatedly held that trial courts
should submit statutory claims in the statutory language; (3) contained incorrect statements of law; (4)
improperly characterized certain evidence as only
amounting to “mere isolated references;” (5) had not
been approved as a proper submission by any Texas
court or the Pattern Jury Charge Committee of the
State Bar of Texas; and (6) constituted a direct comment on the weight of the evidence.
*2 The jury answered “No” to the question of
whether Crenshaw and Goehring were married, and
therefore did not answer the remaining questions related to liability, proportionate responsibility, and
damages. The trial court entered a take-nothing
judgment against Crenshaw, and she timely appealed.
I. JURY CHARGE ON COMMON LAW MARRIAGE
On appeal, Crenshaw contends the trial court erred in
submitting the instruction on common law marriage,
and that such instruction was harmful because it
impermissibly tilted or nudged the jury toward a finding against Crenshaw on the existence of a common
law marriage.
...
The court shall not in its charge comment directly
on the weight of the evidence or advise the jury of
the effect of their answers, but the court's charge
shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of
the evidence or advises the jury of the effect of
their answers when it is properly a part of an instruction or definition.
TEX.R. CIV. P. 277. A jury instruction is proper if it:
(1) assists the jury; (2) accurately states the applicable law; and (3) is supported by the pleadings and
evidence. Columbia Rio Grande Healthcare, L.P. v.
Hawley, 284 S.W.3d 851, 855-56 (Tex.2009). Rule
277 affords the trial court considerable discretion in
deciding what instructions are necessary and proper.
State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 45152 (Tex.1997); GuideOne Lloyds Ins. Co. v. First
Baptist Church of Bedford, 268 S.W.3d 822, 836
(Tex.App.-Fort Worth 2008, no pet.). In fact, a trial
court is afforded even more discretion when submitting instructions than when submitting jury questions.
GuideOne Lloyds, 268 S.W.3d at 836-37; Wal-Mart
Stores, Inc. v. Middleton, 982 S.W.2d 468, 470
(Tex.App.-San Antonio 1998, pet. denied).
[3][4][5][6] We review the trial court's decision to
submit a particular jury instruction for an abuse of
discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579
(Tex.2006) (per curiam); Star Enterprise v. Marze,
61 S.W.3d 449, 456 (Tex.App.-San Antonio 2001,
pet. denied). A trial court abuses its discretion when
it acts arbitrarily, unreasonably, or without reference
to any guiding principles. Middleton, 982 S.W.2d at
469-70; Bocquet v. Herring, 972 S.W.2d 19, 21
(Tex.1998). An erroneous instruction, however, does
not require reversal if it did not cause the rendition of
an improper judgment. Tex.R.App. P.44.1 (a) (“No
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judgment may be reversed on appeal on the ground
that the trial court made an error of law unless the
court of appeals concludes that the error complained
of ... probably caused the rendition of an improper
judgment.”); Star Enterprise, 61 S.W.3d at 456.
Charge error is generally considered harmful if it
relates to a contested, critical issue. Columbia, 284
S.W.3d at 856. We review the entire record to determine whether the submission or refusal to submit an
instruction probably resulted in an improper judgment. Timberwalk Apartments, Partners, Inc. v. Cain,
972 S.W.2d 749, 756 (Tex.1998).
B. Discussion
*3 [7] In Texas, a common law marriage has three
requirements: (1) the parties agreed to be married; (2)
the parties lived together in Texas as husband and
wife after they agreed to be married; and (3) the parties represented to others that they were married.
TEX. FAM.CODE ANN. § 2.401(a)(2) (Vernon
2006); Russell v. Russell, 865 S.W.2d 929, 932
(Tex.1993); Palacios v. Robbins, No. 04-02-00338CV, 2003 WL 21502371, at *3 (Tex.App.-San Antonio Jul. 2, 2003, pet. denied) (mem. op.)
[8] Crenshaw first argues the trial court erred in failing to submit a statutory claim in language tracking
the statute; in other words, he asserts the submission
on common law marriage did not track section 2.401
of the Family Code “as closely as possible.” TEX.
FAM.CODE ANN. § 2.401(a)(2); Spencer v. Eagle
Star Ins. Co. of Am., 876 S.W.2d 154, 157
(Tex.1994) (“When liability is asserted based upon a
provision of a statute or regulation, a jury charge
should track the language of the provision as closely
as possible.”). Second, Crenshaw contends the “mere
isolated references” instruction amounted to an improper comment on the weight of the evidence. See
Acord v. General Motors Corp., 669 S.W.2d 111,
116 (Tex.1984) (charge should not be embellished
with surplus instructions that tend to lead the jury
toward a particular answer or suggest the trial court's
opinion on the matter); Lemos v. Montez, 680 S.W.2d
798, 801 (Tex.1984) (even a correct statement of the
law should not be submitted if the instruction comments on the weight of the evidence or impermissibly
tilts or nudges the jury one way or the other).
Crenshaw takes particular offense to the addition of
the word “mere” to modify the phrase “isolated references,” which she contends is already an inappropri-
ate embellishment. See Lemos, 680 S.W.2d at 801
(instruction advising jury that “mere happening of a
collision is not evidence of negligence” was an impermissible comment that tilted or nudged the jury
one way or the other). FN1
In response, Kennedy and Newco initially contend
that the instruction did track the Family Code and
that there was no error in deviating from the pattern
jury charge by adding a definition or instruction. See
Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45-46
(Tex.2007); see also H.E. Butt Grocery Co. v.
Bilotto, 985 S.W.2d 22, 23 (Tex.1998) (trial courts
have broad discretion to add definitions to a pattern
jury charge that has not been declared the exclusive
method of charging a jury in Texas); Whiteside v.
Watson, 12 S.W.3d 614, 623-24 (Tex.App.-Eastland
2000, pet. denied) (same).
Additionally, both defendants assert the particular
paragraph at issue was proper because it (1) assisted
the jury, (2) accurately stated the law, and (3) was
supported by the pleadings and evidence. See TEX.R.
CIV. P. 277, 278; Columbia, 284 S.W.3d at 855-56.
Kennedy argues that because the instruction was an
accurate statement of the law, it necessarily helped
the jury. In support of this argument, Kennedy cites
nine Texas cases for the proposition that isolated or
occasional references to “husband” or “wife,” without more, are no evidence of holding out. See Estate
of Claveria v. Claveria, 615 S.W.2d 164, 166
(Tex.1981) (when two persons not living together
occasionally refer to each other as a “spouse,” these
isolated references do not establish a common-law
marriage); Ex parte Threet, 160 Tex. 482, 333
S.W.2d 361, 364 (1960) (introduction of defendant as
her “husband” to two close friends, and telling three
others they were married, constituted no evidence of
holding out to the public as man and wife where couple did not live together, and she publicly represented
herself as single); Drummond v. Benson, 133 S.W.2d
154, 160 (Tex.Civ.App.-San Antonio 1939, writ ref'd) (isolated references to each other as “husband”
and “wife” did not establish a common law marriage
where couple lived together only intermittently and
did not use the same last name); Nichols v. Lightle,
153 S.W.3d 563, 571 (Tex.App.-Amarillo 2004, pet.
denied) (summary judgment affidavits showing, at
most, only isolated references to each other as husband and wife, did not raise a genuine question of
fact on the holding out element of common law mar-
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riage); Lee v. Lee, 981 S.W.2d 903, 907 (Tex.App.Houston [1st Dist.] 1998, no pet.) (woman's introduction of man as her “husband” to two close friends,
and telling a few customers and friends they were
secretly married, constituted no evidence that both
persons held themselves out to the public as man and
wife); Flores v. Flores, 847 S.W.2d 648, 653
(Tex.App.-Waco 1993, writ denied) (where couple
had been married and divorced, man's reference after
divorce to his “wife” and statement that he was “living with my wife and helping her out” was insufficient to support a finding of holding out and agreement to re-marry); Winfield v. Renfro, 821 S.W.2d
640, 651 (Tex.App.-Houston [1st] Dist.1991, writ
denied) (occasional introductions as husband and
wife, without having reputation in the community of
being married, did not establish element of holding
out); In re Estate of Giessel, 734 S.W.2d 27, 31
(Tex.App.-Houston [1st] Dist.1987, writ ref'd n.r.e.)
(references to each other as “husband” and “wife”
were not the only evidence of holding out where record was replete with evidence of couple's conduct
and reputation in community representing they were
married); Gary v. Gary, 490 S.W.2d 929, 934
(Tex.Civ.App.-Tyler 1973, writ ref'd n.r.e.) (occasional references to “husband” and “wife” did not
support finding of holding out where couple were not
sure they were divorced from previous marriage).
*4 [9] Kennedy and Newco further argue that if the
instruction was a comment on the weight of the evidence, it was only incidental. To constitute a comment on the weight of the evidence, the instruction
must indicate the trial judge's opinion on the truth of
the matter in question. Harris v. General Motors
Corp., 924 S.W.2d 187, 188 n. 1 (Tex.App.-San Antonio 1996, writ denied); Maddox v. Denka Chem.
Corp., 930 S.W.2d 668, 671 (Tex.App.-Houston [1st
Dist.] 1996, no writ). An incidental comment on the
evidence is not error. TEX.R. CIV. P. 277; Harris,
924 S.W.2d at 188 n. 1. Here, Kennedy asserts the
instruction merely tracked the holdings in case law,
and did not tell the jury to give more weight to particular evidence over other evidence. Kennedy points
to Lewis v. Anderson, 173 S.W.3d 556 (Tex.App.Dallas 2005, pet. denied), as an analogous case on the
issue of the existence of an informal marriage. In
Lewis, the appellant objected to the following jury
instruction:
You are instructed that proof of an agreement to be
married may be established by circumstantial evidence or the conduct of the parties. Proof of cohabitation and representation to others that the
couple are married may constitute circumstantial
evidence of an agreement to be married.
Id. at 564. The Dallas court noted the instruction
quoted directly from Russell v. Russell, 865 S.W.2d
929, 933 (Tex.1993), and was a correct statement of
the law. Id. at 565. The court further held that, “[t]o
the extent the instruction commented on the evidence, it did so only incidentally and did not suggest
the trial court's opinion concerning the issue.” Id.
Moreover, the Dallas court concluded the instruction
was “helpful” to the jury. Id. (citing LouisianaPacific Corp. v. Knighten, 976 S.W.2d 674, 676
(Tex.1998)).
[10] We reject each of the arguments made by Kennedy and Newco. First, contrary to the impression
created by the challenged language “mere isolated
references,” there is no bright-line quantitative test
for what constitutes sufficient evidence of holding
out to others. All of the cases relied on by the defendants, and referenced supra, apply a very factspecific analysis to determine whether the holding
out element of a common law marriage has been
proven under the particular facts and circumstances
of the case. See, e.g., Threet, 333 S.W.2d at 364;
Drummond, 133 S.W.2d at 160; Winfield, 821
S.W.2d at 651; Giessel, 734 S.W.2d at 31. Further,
the mere fact that an instruction is a correct statement
of the law does not mean it should be included in the
jury charge, and does not prevent it from being an
improper comment on the weight of the evidence. See
Acord, 669 S.W.2d at 116 (in closely contested case,
instruction that singled out for the jury that General
Motors was neither an insurer nor a guarantor of an
accident-proof product was an impermissible comment on the case as a whole); Maddox, 930 S.W.2d at
671 (noting every correct statement of the law does
not belong in the jury charge, and holding surplus
instruction on duty tended to lead the jury to a particular answer and suggested judge's opinion on the
issue).
*5 [11] Here, the challenged portion of the instruction on common law marriage, even if a correct
statement of the law,FN2 nudged the jury in a specific
direction, and was more than an incidental comment
on the weight of the evidence. The language used,
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“[m]ere isolated references to each other as husband
and wife does not amount to adequate evidence to
prove that they represented to others that they were
married,” constitutes a direct comment on one aspect
of one element of the statutory claim of common law
marriage on which the plaintiff had the burden of
proof. See Russell, 865 S.W.2d at 932 (elements of
common law marriage are agreement to marry, living
together after agreement, and holding out). By stating
that a certain category of evidence “does not” constitute sufficient evidence, the instruction favored the
defensive theory that there was no evidence on the
element of holding out, and impermissibly indicated
the trial judge's opinion on the issue. See Lemos, 680
S.W.2d at 801 (explicit instruction that particular
evidence, “the mere happening of a collision,” is not
evidence of negligence was materially different from
instruction that particular evidence does not necessarily imply negligence, and was error). The instruction in the instant case differs significantly from the
instruction in Lewis, relied on by Kennedy, which
made the permissive statement that certain categories
of proof “may” constitute circumstantial evidence of
an agreement to be married. See Lewis, 173 S.W.3d
at 564-65 (holding instruction was not a direct comment on weight of the evidence). In contrast, the
challenged language here instructed the jury that
“mere isolated references” to each other as husband
and wife “does not amount to adequate evidence” of
holding out, and thus directly commented on the
weight of the evidence on that element of Crenshaw's
claim in violation of Rule 277.
Because it amounted to a direct comment on the
weight of the evidence on one element of the contested issue of common law marriage, we hold the
trial court abused its discretion in submitting the
challenged portion of the jury instruction.
C. Harm Analysis
[12] Having determined that the instruction was erroneous, we must now decide whether it probably
caused the rendition of an improper judgment. See
TEX.R.APP. P. 44.1(a). Crenshaw maintains the erroneous instruction was harmful because whether a
common law marriage existed was a contested, critical issue at trial. See Columbia, 284 S.W.3d at 856
(charge error is generally harmful if it relates to a
“contested, critical issue”). The existence of a common law marriage was the only question answered by
the jury, and was extensively addressed in voir dire,
in opening statements, by trial witnesses, and in closing arguments. In addition, Crenshaw asserts the following closing argument by defense counsel compounded the harm:
If you look at the instruction on question one the
very last sentence says mere isolated references to
each other as husband and wife does not amount to
adequate evidence. That's the Judge telling you
that. Mere isolated references. One time, two times,
ten times over the course of several years that just
doesn't get it.
*6 Crenshaw notes that in Timberwalk, the court held
that an erroneous instruction constituted harmful error where “there was a vigorous dispute at trial” related to the instruction and counsel's closing argument “focused the jury's attention on the instruction
and plainly misstated it.” Timberwalk, 972 S.W.2d at
755-56. We conclude the erroneous instruction was
harmful because it definitively instructed the jury that
a certain category of evidence on a contested, critical
element of common law marriage was flatly inadequate, and therefore impermissibly suggested the trial
judge's opinion on the matter and nudged the jury
toward a defensive theory. Moreover, the defendant's
closing argument to the jury quoted above stressed
the erroneous instruction and highlighted the idea that
the instruction revealed the judge's opinion on the
matter. Therefore, we conclude the submission of the
erroneous instruction probably caused the rendition
of an improper verdict. See TEX.R.APP. P. 44.1(a).
Kennedy and Newco argue that any error in the
charge on common law marriage was necessarily
harmless because their motions for directed verdict
on common law marriage should have been granted.
That argument is addressed below.
II. CROSS-APPEAL: MOTIONS FOR DIRECTED VERDICT
Both Kennedy and Newco moved for directed verdict
on the issues of common law marriage and products
liability. The trial court denied the motions and submitted the case to the jury. On cross-appeal, both
defendants argue the trial court erred in failing to
grant their motions for directed verdict on common
law marriage because there is no evidence that
Crenshaw was the common law wife of Goehring. As
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to liability, Newco argues the evidence conclusively
established that its component hook did not fail, and
that Newco was not in any way involved in the design of the integrated wire rope sling; therefore, it
was entitled to a directed verdict. Kennedy argues it
was entitled to a directed verdict on liability because
there was no evidence that the integrated sling was
defectively designed.
A. Standard of Review
[13] A directed verdict for a defendant may be proper
in two situations: (1) when a plaintiff fails to present
evidence raising a fact issue essential to the plaintiffs
right to recover; and (2) when the plaintiff either admits or the evidence conclusively establishes a defense to the plaintiff's cause of action. Prudential Ins.
Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74,
77 (Tex.2000).
[14] We review a challenge to a trial court's denial of
a motion for directed verdict the same as we would
review a challenge to the legal sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 823
(Tex.2005). Under a legal sufficiency standard of
review, we view the evidence in the light most favorable to the finding and indulge every reasonable inference that supports it. Id. at 822. We credit favorable evidence if a reasonable fact-finder could, and
disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. If there is more than a
scintilla of evidence to support the finding, the legal
sufficiency challenge fails. Formosa Plastics Corp.
USA v. Presidio Eng'rs & Contractors, Inc., 960
S.W.2d 41, 48 (Tex.1998). More than a scintilla of
evidence exists “if the evidence ‘rises to a level that
would enable reasonable and fair-minded people to
differ in their conclusions.’ ” Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d
706, 711 (Tex.1997)).
B. Common Law Marriage
*7 To determine whether Kennedy and Newco were
entitled to a directed verdict on common law marriage, we examine each required element in turn. See
TEX. FAM.CODE ANN. § 2.401(a)(2).
(1) Agreement to Be Married
[15][16][17][18][19] To establish an agreement to be
married, the evidence must show the parties “intended to have a present, immediate, and permanent
marital relationship and that they did in fact agree to
be husband and wife.” Eris v. Phares, 39 S.W.3d
708, 714 (Tex.App.-Houston [1st Dist.] 2001, pet.
denied). The agreement to be married may be established by direct or circumstantial evidence. Russell,
865 S.W.2d at 933. The unchallenged testimony of
one of the parties to the marriage constitutes direct
evidence the parties agreed to be married and
amounts to more than a scintilla. Eris, 39 S.W.3d at
714 (citing Collora v. Navarro, 574 S.W.2d 65, 70
(Tex.1978)); Giessel, 734 S.W.2d at 32. The conduct
of the parties as well as proof of cohabitation and
representations to others may constitute circumstantial evidence of an agreement to be married depending upon the facts of the case. See Russell, 865
S.W.2d at 933; see also Eris, 39 S.W.3d at 714.
Here, Crenshaw testified that three or four months
after they started dating, she and Goehring agreed
that they would be married. Kennedy argues that this
testimony is self-serving and uncorroborated. Although Crenshaw's testimony was challenged by the
defense, and contradicted by Goehring's family,
friends, and coworkers, who testified that they believed Crenshaw to be Goehring's girlfriend, it is
more than a scintilla of evidence of an agreement to
be married. We conclude the evidence was legally
sufficient to establish that Crenshaw and Goehring
agreed to be married.
(2) Cohabitation
[20] There was extensive evidence presented at trial
that Crenshaw and Goehring lived together for almost
two years prior to his death. Goehring moved into
Crenshaw's duplex in Victoria in September 2005,
and lived there until his death on June 18, 2007.
Goehring worked seven days on and seven days off;
on his days off, he lived at the duplex with Crenshaw.
Cohabitation need not be continuous. See Bolash v.
Heid, 733 S.W.2d 698, 699 (Tex.App.-San Antonio
1987, no writ) (holding evidence sufficient to establish cohabitation where husband worked in Nigeria
but lived with wife each time he returned to Texas).
Goehring kept his possessions, including clothing,
vehicles, tools, furniture, guns, dishes, fishing gear,
and other personal property at the duplex. Several
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witnesses, including Goehring's parents, testified that
Crenshaw and Goehring were living together at the
time of his death. The evidence was legally sufficient
to establish that Crenshaw and Goehring lived together in Texas after they agreed to be married.
(3) Holding Out
[21][22] Finally, to meet the third element of common law marriage, the parties must have represented
to others in Texas that they were married. Winfield,
821 S.W.2d at 648. The statutory requirement of
“represented to others” is synonymous with the judicial requirement of “holding out to the public.” Id.;
Giessel, 734 S.W.2d at 30. Holding out may be
proven by evidence of the conduct and actions of the
parties. Eris, 39 S.W.3d at 715; Giessel, 734 S.W.2d
at 31. “Spoken words are not necessary to establish
representation as husband and wife.” Winfield, 821
S.W.2d at 648.
*8 Here, Crenshaw and two witnesses testified regarding the element of holding out. Sara Pagil,
Crenshaw's close friend, frequently stayed at the duplex and testified that the couple often referred to
each other as “husband and wife,” and Pagil considered them to be married. When people would ask
where Goehring was, Crenshaw would answer, “Oh
[,] my husband is over there.” Pagil remembered one
occasion when Crenshaw told Goehring to get out of
the kitchen so she could cook dinner, and Goehring
replied, “Man [,] my wife is mean.”
Monty Hoffman, who lived across the street from the
couple, testified that Crenshaw regularly referred to
Goehring as her “husband” and he thought the couple
was married. On one occasion, Goehring confronted
him about a barbeque pit Hoffman had borrowed
from Crenshaw without permission. Goehring told
him, “Jamie [Crenshaw] is my wife and, whatever is
hers is mine.”
Crenshaw herself testified that once they decided to
be married, she and Goehring both represented to
others that they were husband and wife. Before making plans with others, Crenshaw would say, “I would
have to speak with my husband.” Likewise, Goehring
would say, “he would have to speak to his wife,” or
that he would “need to get it approved with his wife
first.” Crenshaw also referred to a specific occasion
in December 2005 or January 2006 when she and
Goehring told his friends, John and Randy Becker,
that they were married.
John Becker, however, refuted that statement, and
testified there was no doubt in his mind that
Crenshaw and Goehring were not married. In fact, all
of the defense witnesses, including Goehring's family, friends, and coworkers, testified that Crenshaw
and Goehring did not hold themselves out as husband
and wife. Additionally, Pagil testified that Crenshaw
told her that she and Goehring planned to get married. Kennedy and Newco assert that such a statement
negates the existence of a present informal marriage,
because a couple cannot presently be married and
also plan to marry in the future. Kennedy and Newco
argue there is no evidence to show that Goehring
believed he was married to Crenshaw, and that the
couple's isolated references to each other as “husband” and “wife” were insufficient as a matter of law
to establish that they held themselves out as married.
See Threet, 333 S.W.2d at 364.
Crenshaw responds that even if the references were
isolated, they were corroborated by the uncontroverted evidence that they agreed to be married and
the overwhelming evidence of cohabitation. See
Russell, 865 S.W.2d at 932-33; see also Claveria,
615 S.W.2d at 166. Considering the evidence in the
light most favorable to Crenshaw, we conclude that
reasonable and fair-minded people could differ in
their determinations as to whether Crenshaw and
Goehring held themselves out as husband and wife.
See City of Keller, 168 S.W.3d at 827-28. There is
certainly more than a scintilla of evidence-based on
the testimony of Pagil, Hoffman, and Crenshaw-that
the couple represented to others that they were married. Accordingly, we hold the trial court did not err
in denying the defendants' motions for directed verdict, and correctly submitted the issue of common
law marriage to the jury.
C. Products Liability
*9 To recover on her products liability claim alleging
the integrated wire rope sling was defectively designed, Crenshaw had to prove that:
(1) the product was defectively designed so as to be
unreasonably dangerous, taking into consideration
the utility of the product and the risk involved in its
use;
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low:
(2) there was a safer alternative design; and
(3) the defect was a producing cause of the injury
or death in question.
TEX. CIV. PRAC. & REM.CODE ANN. § 82.005(a)
(Vernon 2005); Hernandez v. Tokai Corp., 2 S.W.3d
251, 256-57 (Tex.1999). Kennedy and Newco moved
for directed verdict on the issue of liability, alleging
that Crenshaw failed to present more than a scintilla
of probative evidence on the first element of her
claim for a defectively designed product. We address
each motion for directed verdict in turn.
(1) Newco's Motion
Q. And would you agree that ifs [sic] it is possible
to use a safety latch on a hook that it should be
used on a hook.
A. Yes.
Q. All right I mean it makes common sense to-that
increases the safety of the hook doesn't it?
A. Yes, it does.
Q. Uh now you-Newco realizes that this hook
without a latch is still going to be used in slings
that lift objects over people's heads.
[23] Newco moved for directed verdict on the basis
that the evidence conclusively established that its
component hook did not fail, and that it was not in
any way involved in the design of the integrated wire
rope sling. Newco argues that, as a component-part
manufacturer who did not participate in the integration of the hook into the sling, it is not liable for any
defects in the sling if the hook itself was not defective. See Bostrom Seating, Inc. v. Crane Carrier Co.,
140 S.W.3d 681, 683 (Tex.2004) (“if the componentpart manufacturer does not participate in the integration of the component into the finished product, it is
not liable for defects in the final product if the component itself is not defective.”); Willowbrook Foods,
Inc. v. Grinnell Corp., 147 S.W.3d 492, 504
(Tex.App.-San Antonio 2004, pet. denied) (component part manufacturer that supplies a product according to purchaser's specifications is free from liability if component itself is not defective). Crenshaw
contends there was sufficient evidence to establish
that Newco's hook was defectively designed, or at
least to raise a fact issue on the matter. Crenshaw
relies on the testimony of Erica Ryles, Newco's manager, and the testimony of an expert witness Randy
McClay, a petroleum engineering expert.
*10 A. We can assume that that's what they are going to be used for, we don't know.
In determining whether the record contains any probative evidence to raise a fact issue on whether the
hook itself was defective, we must look closely at the
trial testimony cited by Crenshaw, viewing it in the
light most favorable to her as the non-movant.
Bostrom, 140 S.W.3d at 684 (citing Dow Chemical
Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001)). The
relevant portion of Ryles' testimony is set forth be-
Q And you as Newco have known that you knew it
before you ever sold it.
Q. You don't know but you want-you can assume
it's going to happen and so as the manufacturer you
need to plan for that.
A. Correct.
Q And the way you plan for that is to make it safe
as possible.
A. Yes.
Q. And for it to be safe as possible when its's lifting loads over people's heads, it needs to have a
safety latch on it doesn't it.
A. Uh, yeah.
A. And it doesn't, does it?
A. No it does not.
A. That's correct.
Q That in order to truly be safe it needed to have a
safety latch on it.
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A. Yes.
Q And you didn't do it.
A. Yeah.
Q. And when this hook without a safety latch is
used on a cable as an assembly without a safety
latch, you wouldn't recommend that this cable and
assembly be used for work overhead would you?
A. No
Q. And that makes this whole thing defective doesn't it?
A. I don't know if it does or doesn't
Q. Well it's unreasonably dangerous isn't it becauseA. If slack becomes in the line, yes.
Q. And it could be-and it is unreasonably dangerous if slack gets in the line because it doesn't have
a safety latch.
hook attached) to be as safe as possible. Ryles stated
she would not recommend using the Newco hook
without a safety latch “on a cable as an assembly” for
work overhead. She further stated that “this whole
thing” can be unreasonably dangerous if slack gets in
the line. We read Ryles' testimony that the “whole
thing” was defective under certain conditions, i.e.,
slack in the line, as referring to the whole integrated
product, not the Newco hook by itself. In addition,
Ryles testified that Newco does sell the same size
hook with a safety latch for use with a single wire
rope, but not for use with the braided wire rope used
by Kennedy. Finally, Ryles testified that one of
Newco's competitors, Crosby, sells a hook equipped
with a safety latch for use with braided wire rope.
In addition, Crenshaw relies on McClay's expert testimony explaining that because the Newco hook
lacked a safety latch, the sling incorporating the hook
was unreasonably dangerous when used with braided
wire cable to lift loads overhead. Crenshaw maintains
this evidence is sufficient to raise a fact issue on the
first element of her design defect claim against
Newco. However, McClay also testified that the
Newco hook did not break or otherwise fail, and that
the most likely cause of the accident was slack in the
sling line which caused the thimble to come out of
the hook and the load to release. Specifically, when
questioned about the Newco hook component,
McClay testified in relevant part:
A. That correct.
Q. And if that's the definition the jury answers-is
asked about defective, that makes that whole thing
defective doesn't it?
A. I would assume so.
Crenshaw argues that Ryles' testimony set forth
above conclusively established that the Newco hook
by itself was defectively designed. We disagree.
Reading Ryles' testimony as a whole and in context
shows that she was stating that the whole assembled
product (“this cable and assembly”), i.e., the braided
wire rope sling with the Newco hook attached, was
unreasonably dangerous for lifting loads overhead if
slack got in the line. Ryles testified the Newco hook
used by Kennedy was not equipped with a safety
latch, and that a hook with a safety latch should have
been used for lifting loads over people's heads in order for the whole integrated product (sling with the
*11 Q. Do you have an opinion whether or not the
Newco number 3 sliding choker hook that was installed on exhibit number 8 at the time of the accident, without a safety latch, was an appropriate
piece of equipment for the job that was being
done?
A. I believe it was totally inappropriate for that
particular job. [Expert testified about design defects and definition of “design defect,” and “safer
alternative design.”]
Q. Do you have an opinion whether or not per that
definition, the-there was a design defect, uh, in the
Newco number 3 choker hook that was a producing
cause of the occurrence in question?
A. Yes, sir.
Q. And what is that opinion?
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A. I believe that there was a better design, a safer
design of that particular sling, uh, we've heard testimony and I agreed with the testimony that if the
hook had had a latch you would have prevented the
slack condition from allowing it to come unhooked
and I believe that is what caused this accident.
[24] Again, reading McClay's testimony in context it
is apparent that he was referring to the defective design of “that particular sling,” the integrated product,
not to the Newco hook by itself. Indeed, McClay
testified that the hook itself was not per se defective,
and did not fail. Further, McClay did not opine that
the integrated wire rope sling was defectively designed for all purposes, but rather “was totally inappropriate for that particular job.” McClay stressed
that “there was a better design, a safer design of that
particular sling,” and that the integrated sling was
misused in an inappropriate application. McClay
conceded, however, that both the hook and sling were
appropriate for certain applications. As noted in
Bostrom, a component part which is not itself defective and is appropriate for certain other applications
does not become “defective” simply because it was
used in an inappropriate application. Id. at 683-84
(component seat which was not itself defective, and
which “in another application, not the one on this
vehicle, could work and perform under many conditions well,” was not defective as integrated into vehicle restraint system where manufacturer had no control over design of restraint system).
Viewing the above-quoted testimony in the light most
favorable to Crenshaw, we do not agree that the testimony of Ryles and McClay raised a fact issue as to
whether the Newco hook was defective in and of itself. Rather, both witnesses testified that the hook, as
integrated into the wire rope sling by Kennedy, was
part of a defectively designed “assembly,” i.e., the
integrated product as a whole. As in Bostrom, Kennedy chose which hook it would use and integrated it
into the design of the braided wire rope slingKennedy was “in total control” of the design of the
sling, and Newco played no role in designing the
sling. See id. at 684-85. We read Ryles' and McClay's
testimony much like Newco does, meaning that both
witnesses testified the issue was more one of misuse
or inappropriate application of the hook than defective design of the hook itself. We conclude there is no
evidence that the hook itself was defective, or that
Newco participated in the integration of the hook into
the final product; therefore, as a component-part
manufacturer, it is not liable for any design defects in
the wire rope sling. See id. at 683.
*12 Because the evidence does not raise a fact issue
as to whether the Newco hook was itself defective,
and because there is no evidence that Newco participated in the integration of the hook into the final
product, we hold that Newco cannot be held liable for
the alleged defective design of the sling. See id. at
684. We therefore sustain Newco's complaint regarding its motion for directed verdict on liability, and
render a take-nothing judgment in favor of Newco.
(2) Kennedy's Motion
[25][26] Kennedy asserts the trial court erred in denying its motion for directed verdict because there
was no evidence that its integrated wire rope sling
was defectively designed so as to be unreasonably
dangerous, taking into consideration the utility of the
product and the risk involved in its use. See
Hernandez, 2 S.W.3d at 257. Specifically, Kennedy
maintains the evidence failed to raise a fact issue on
the following five risk-utility factors FN3 that are used
to determine whether the defective design of a product rendered it unreasonably dangerous:
(1) the utility of the product to the user and to the
public as a whole weighed against the gravity and
likelihood of injury from its use; (2) the availability
of a substitute product which would meet the same
need and not be unsafe or unreasonably expensive;
(3) the manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its
costs; (4) the user's anticipated awareness of the
dangers inherent in the product and their avoidability because of the general public knowledge of the
obvious condition of the product, or of the existence of suitable warnings or instructions; and (5)
the expectations of the ordinary consumer.
Hernandez, 2 S.W.3d at 256 (citing American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 432
(Tex.1997)). We conduct the risk-utility analysis
within the context of the product's intended use and
its intended users. Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 312 (Tex.2009).
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Crenshaw responds that the evidence was sufficient
to raise a fact issue as to whether Kennedy defectively designed an integrated wire rope sling that was
unreasonably dangerous. See TEX. CIV. PRAC. &
REM.CODE ANN. § 82.001(4) (Vernon 2005) (defining a “manufacturer” as anyone who designs or
assembles a product or any component part thereof
and places the product or component part into the
stream of commerce); see also MCI Sales & Serv.,
Inc. v. Hinton, 272 S.W.3d 17, 31 (Tex.App.-Waco
2008, pet. granted) (“[a] design defect renders a
product unreasonably dangerous as designed, taking
into consideration the utility of the product and the
risk involved in its use.”). Specifically, Crenshaw
contends the testimony of Ryles and McClay, summarized above, as well as the testimony of Warren
Hubler, H & P's Vice President for Health Safety
Environment, and Garland Kennedy, Vice President
and co-owner of Kennedy Wire Rope & Sling, raises
a fact issue on each of the five risk-utility factors. We
briefly summarize the testimony of Hubler and Kennedy.
*13 Warren Hubler testified that, due to H & P's prior
experience with failed chain slings, he contacted
Kennedy about alternatives. He trusted Kennedy's
expertise and advice with regard to slings, wire rope,
and equipment selection. Hubler stated that H & P
looked to Kennedy for “reputable instruction on what
to watch out for and how to operate our rig safely
with regard to slings, rigging, and wire rope.”
Garland Kennedy testified that his company publicly
represents that it has experience in heavy lifting, and
offers consulting services on the use and safety of
wire rope slings. He stated that matching the sling to
the particular job is “critical” in terms of safety, because if the wrong piece of equipment is provided
accidents can occur. Kennedy stated he is familiar
with H & P's operations, having done business with
them for 27 years. Kennedy agreed that Hubler and H
& P approached his company about their problem
with broken slings and dropped objects, and sought
Kennedy's advice on the “ultimate safest way” to do
the job. In response, Kennedy analyzed H & P's lifting procedures and conducted a variety of tests.
Based on Kennedy's advice, H & P decided to purchase a braided wire rope sling equipped with the
Newco sliding choker hook.
We agree with Crenshaw that there was more than a
scintilla of evidence sufficient to raise a fact issue on
each of the risk-utility factors. The evidence established that the particular design of the braided wire
rope sling with a Newco hook was chosen by Kennedy. Before recommending the “improved” sling
product to H & P, Kennedy made the decision to use
braided wire rope, rather than single wire rope, and
then chose the Newco number 3 choker hook for assembly with the braided rope, knowing it did not
have a safety latch. Ryles testified that not only does
Newco sell a similar hook with a safety latch, although only for use with single wire rope, but a competitor, Crosby, also sells a hook with a safety latch
that can be used with braided wire rope. In addition,
Ryles testified that the sling should have incorporated
a hook with a safety latch in order for the whole
product to be as safe as possible for lifting overhead
loads-in case slack got in the line. McClay testified
that the hook without a safety latch was “inappropriate for that particular job;” specifically, McClay
stated that, although the hook itself was not defective
and did not fail, the sling design incorporating a hook
without a safety latch allowed the load to come unhooked when slack got in the line, causing the accident. In addition, there is evidence that Kennedy had
the ability to make the integrated sling product safer
for lifting overhead loads without impairing its usefulness or significantly increasing costs. Further, the
testimony of Hubler and Garland Kennedy shows that
Kennedy was well aware of H & P's prior problems
with chain slings that broke or failed and its need for
a safer sling for use on it rigs, and yet recommended
a sling that incorporated a hook without a safety
latch. Hubler testified he would have liked to know
about the option of using a hook with a safety latch,
and that the additional cost would not have been an
issue. Kennedy testified that incorporating a choker
hook with a safety latch was feasible and would not
have reduced the sling's utility.
*14 Considering the evidence in the light most favorable to Crenshaw, we conclude that reasonable minds
could differ on consideration of the five risk-utility
factors, and thus the matter cannot be determined as a
matter of law. See Timpte, 286 S.W.3d at 312 (issue
of whether a product is defectively designed is generally a question of fact for the jury, although it may be
determined as a matter of law in an appropriate case);
Hernandez, 2 S.W.3d at 260-61 (determination of
whether product is unreasonably dangerous as designed may be a legal question if reasonable minds
cannot differ on the risk-utility analysis). Because the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 17
--- S.W.3d ----, 2010 WL 2601662 (Tex.App.-San Antonio)
(Cite as: 2010 WL 2601662 (Tex.App.-San Antonio))
issue of a design defect was a question of fact for the
jury in this case, we hold the trial court did not err in
denying Kennedy's motion for directed verdict on
liability, and in submitting the issue to the jury.
CONCLUSION
Based on the foregoing analysis, we conclude the
challenged portion of the jury instruction on common
law marriage was a direct comment on the weight of
the evidence. The erroneous instruction was harmful
to Crenshaw because it instructed the jury that a certain category of evidence on a contested, critical element of common law marriage was inadequate, and
therefore suggested the trial judge's opinion and
nudged the jury toward a defensive theory. However,
because we conclude that Newco was entitled to a
directed verdict on the issue of liability, we affirm the
takenothing judgment entered by the trial court in
favor of Newco. By contrast, we do not conclude that
Kennedy was entitled to a directed verdict on the
issues of common law marriage or liability. Accordingly, we reverse the remaining portion of the trial
court's judgment as to Kennedy and remand the cause
of action as to Kennedy to the trial court for further
proceedings.
established the second of the five risk-utility
factors-the existence of an alternative hook
design which would not be unsafe or unreasonably expensive.
Tex.App.-San Antonio,2010.
Crenshaw v. Kennedy Wire Rope & Sling Co.
--- S.W.3d ----, 2010 WL 2601662 (Tex.App.-San
Antonio)
END OF DOCUMENT
FN1. Kennedy argues Crenshaw failed to
preserve her jury charge complaints for appellate review. We disagree. Crenshaw
made the trial court aware of her complaints
by objecting to the challenged language as a
direct comment on the weight of the evidence, an incorrect statement of the law, and
an improper embellishment that was inconsistent with the pattern jury charge; she also
requested a proposed instruction that tracked
the statute and pattern jury charge. Accordingly, Crenshaw preserved error. See
TEX.R. CIV. P. 278; TEX.R.APP. P.
33.1(a); see also State Dept. of Highways v.
Payne, 838 S.W.2d 235, 241 (Tex.1992);
Green Tree Fin. Corp. v. Garcia, 988
S.W.2d 776, 780-81 (Tex.App.-San Antonio
1999, no pet.).
FN2. We need not determine whether the
challenged language was in fact a correct
statement of the law.
FN3. Kennedy concedes that the evidence
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
APPENDIX
TAB D
CHAPTER 2. THE MARRIAGE RELATIONSHIP - Texas Family Code - Texas Code :: ... Page 1 of 1
SUBCHAPTER E. MARRIAGE WITHOUT FORMALITIES
S 2.401. PROOF OF INFORMAL MARRIAGE. (a) In a judicial,
administrative, or other proceeding, the marriage of a man and
woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as
provided by this subchapter; or
(2) the man and woman agreed to be married and after
the agreement they lived together in this state as husband and wife
and there represented to others that they were married.
(b) If a proceeding in which a marriage is to be proved as
provided by Subsection (a)(2) is not commenced before the second
anniversary of the date on which the parties separated and ceased
living together, it is rebuttably presumed that the parties did not
enter into an agreement to be married.
( c ) A person under 18 years of age may not:
(1) be a party to an informal marriage; or
(2) execute a declaration of informal marriage under
APPENDIX
TAB E
DISSOLUTION OF MARRIAGE
PJC 201.4
PJC 201.4A
i
r
PJC 201.4
Existence of Informal Marriage
Existence of Informal Marriage-Instruction
A man and a woman are married if they agreed to be married and after the
agreement they lived together in Texas as husband and wife and there represented to others that they were married.
PJC 201.4B
Existence of Informal Marriage-Jury
Determination of Date-Question
QUESTION 1
I
I'
I
I;
Are PARTYA and PARTYB married?
Answer "Yes" or "No."
Answer:
If you have answered Question 1"Yes," then answer Question 2. Otherwise,
do not answer Question 2.
QUESTION 2
When were PARTYA and PARTYB married?
Answer by stating the date of the marriage.
Answer:
PJC 201.4C
I
Existence of Informal Marriage-Specific Date or
Event-Question
QUESTION 1
Are PARTYA and PARTY B married?
,Answer'Yes" or "No."
Answer:
If you have answered Question 1"Yes," then answer Question 2. Otherwise,
do not answer Question 2.
-
-
-
I
DISSOLUTION
OF MARRIAGE
PJC 201.4
QUESTION 2
1
Were PARTYA and PARTYB married by January 3,1985?
Answer "Yes" or "No."
I
COMMENT
Source. The foregoing submission is based on Tex. Fam. Code Ann. Q 2.401(a)(2)
(Vernon Supp. 2005).
No instruction regarding declaration of informal marriage. No instruction
based on TFC Q 2.401(a)(l), regarding proof of an informal marriage by evidence that a
declaration of marriage has been executed as provided by TFC Q 2.402, has been provided, since the existence of such proof would virtually never be a jury question.
When to use. The two questions in PJC 201.4B should be used if it is appropriate
under the evidence to ask the jury whether the parties are presently married and, if so, on
what date they were married. In some cases, however, the state of the evidence may
make it unlikely that the jury will be able to agree on a particular date on which the marriage occurred; the relevant inquiry may be whether the marriage existed on a particular
known date or on the occurrence of a particular event, such as the purchase of a house. In
such a case, the questions in PJC 201.4C should be used.
Rewording question. In appropriate cases, the second question in PJC 201.4C
may be reworded to reflect a particular event instead of a particular date: for example,
''Were PARTYA and PARTYB married when they acquired the property at 10Acom Lane
in Houston, Texas?" In some cases, the second question should be expanded into a series
of questions inquiring about the existence of the marriage on various specific dates,
events, or both; the dates and events should be listed in chronological order, beginning
with the earliest, and each question should be conditioned on a "No" answer to the preSeparate trials. The Committee suggests that if a suit involves not only whether
and when the parties were married but also the ownership and characterization of s i m cant property, the court should consider separate trials for these questions. See Tex. R.
Civ. P. 174@); Winfield V. Renfro, 821 S.W.2d 640,652-53 (Tex. App.-Houston [lst
Dist.] 1991, writ denied). If all the probable questions are tried together, it will be necessary to submit multiple sets of contingent questions concerning ownership and characterization of property; the jury will be directed to answer one of these sets depending on
their answers to whether the parties are married and, if so, the date on which they were
married. For example, if the jury answers that the parties were married as of a certain
date, a particular item of property may clearly be community property; if, on the other
II
1