Michael DULANEY, Appellant
Jack-in-the-Box, Inc., Appellee

No. C14-87-00594-CV

Court of Appeals of Texas, Fourteenth District, Houston

June 2, 1988

Ross A. Sears, Justice

This is an appeal from a take-nothing judgment in a personal injury suit for damages sustained when Appellant slipped and fell. We affirm.

The evidence at trial showed that on September 18, 1982, Appellant and a companion went to a Jack-in-the-Box restaurant for lunch. It had been raining heavily that morning and the subsided to an intermitten drizzle prior to noon. The accident occurred between 11:00 a.m. and noon. Prior to Appellant's arrival, a Jack-in-the-Box employee placed a yellow caution sign on the tile floor inside the restaurant near the glass entrance doors and mopped the tile floor inside and outside the entrance. The employee was still mopping during the time appellant and his companion were eating. As Appellant exited, he slipped on a liquid substance, fell, and injured his back and neck. He was wearing "flip-flops" as shoes at the time of the accident.

Appellant brought suit against Appellee and alleged that his injuries were a result of Appellee's negligence in maintaining its premises. The jury found that there was a liquid substance on the floor outside the entrance to the Jack-in-the-Box, but further found that the condition of the floor outside the entrance did not constitute an unreasonable risk of harm to Appellant. A take-nothing judgment was rendered for Appellee on the verdict.

Appellant asserts as his sole point of error that the trial court erred in submitting a supplemental instruction in the charge to the jury which constituted a comment on the weight of the evidence. He further contends that this instruction was unnecessary and harmful to Appellant.

The following instruction was included in the preliminary instructions of the jury charge:

You are instructed that liability from an injury may not be imposed upon the occupier of premises by the mere fact that a business guest is injured on the premises.

Appellant's objection to the submission of this instruction was overruled by the trial court. During the jury's deliberations, it requested clarification of whether the words "may not" in the instruction mean the same as "cannot" or "may or may not." The trial court informed the jury that it could not give them any further instructions.

The trial court has considerable discretion in determining what instructions are necessary and proper in submitting its charge to the jury. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 814 (Tex. App. — Houston [1st Dist.] 1987, writ ref'd n.r.e.); Thomas v. Oil & Gas Building, Inc., 582 S.W.2d 873, 882 (Tex. Civ. App. — Corpus Christi 1979, writ ref'd n.r.e.). Rule 277 of the Texas Rules of Civil Procedure provides:

In submitting the case, the Court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict and in such instances the charge shall not be subject to the objection that it is a general charge. . . . 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 where it is properly a part of an explanatory instruction or definition.

TEX. R. CIV. P. 277 (Vernon 1976). A comment on the weight of the evidence may occur when the trial court assumes the truth of a material controverted fact, or exaggerates, minimize or withdraws some pertinent evidence from the jury's consideration. Hirdler v. Boyd, 702 S.W.2d 727, 730 (Tex. App. — San Antonio 1985, writ ref'd n.r.e.).

An instruction is an improper comment on the weight of the evidence when it suggests to the jury the trial court's opinion about the accuracy of the facts in inquiry. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d at 817; Bisset v. Texas Employers Ins. Assn., 704 S.W.2d 335, 339 Tex. App. — Corpus Christi 1986, writ ref'd n.r.e.). An instruction is proper if it finds support in any evidence and the inferences to be drawn therefrom, and if it might be of some aid or assistance to the jury in answering the issues submitted. Miller v. Miller, 700 S.W.3d 941, 952 (Tex. App. — Dallas 1985, writ ref'd n.r.e.); Atlantic Mutual Ins. Co. v. Middleman, 661 S.W.2d 182, 187 (Tex. App. — San Antonio 1983, writ ref'd n.r.e.). However, the trial court should refuse to submit unnecessary instructions even if they are correct statements of the law. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d at 823; Samsel v. Diaz, 659 S.W.2d 143, 144 (Tex. App. — Corpus Christi 1983, no writ).

Where the instruction does not refer to the facts of the case it is not a direct comment on the weight of the evidence. Texaco, Inc. v. Pennzoil Co., 729 S.W.2d at 817; Board of Regents of North Texas State Univ. v. Denton Construction Co., 652 S.W.2d 588, 595 Tex. App. — Fort Worth 1983, writ ref'd n.r.e.).

In determining whether an alleged error in the jury charge is reversible, the reviewing court must consider the pleadings, the evidence and the charge in its entirety. Further, an error is reversible only where, viewed in the light of the totality of the circumstances, it amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper verdict. Alvarez v. M-K-T R.R. Co., 683 S.W.2d 375, 377 (Tex. 1984); Texaco, Inc. v. Pennzoil Co., 729 S.W.2d at 815. We find the instruction in question to be a proper statement of the law. Dickson v. Weingarten Inc., 498 S.W.2d 388, 389 (Tex. Civ. App. — Houston [14th Dist.] 1973, no writ).

The evidence showed that it had been raining until just prior to Appellant's arrival at the restaurant. An employee of Appellee had placed a warning sign cautioning patrons about the wet condition of the floor near the only entrance/exit, and was mopping the floor during Appellant's stay in the restaurant. Also, the yellow caution signs were positioned so as to be clearly visible to any customer exiting the premises.

Viewed in light of the evidence and the entire jury charge, the instructions was at most an incidental comment on the weight of the evidence, and caused no harm or the rendition of an improper verdict. Appellant's point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.

Panel consists of Justices Ross A. Sears, Cannon and Draughn.