DocketNumber： No. 78-2301
Judges： Garwood, Gee, Hill, Johnson
Filed Date： 1/25/1982
Status： Precedential
Modified Date： 11/4/2024
The Maxeys
On November 21, 1974, Billy and Dee Maxey were en route to Michigan when, while rounding a curve outside of Comanche, Texas, their tractor trailer rig tipped over and skidded to a stop on its right side. The right fuel tank, which was attached to the outside of the truck frame rails, ruptured, spilled its fuel, and ignited. Both Billy and Dee Maxey died as a result of the fire.
Plaintiffs brought this suit, based on diversity of citizenship, 28 U.S.C. § 1332, alleging that the design of the fuel system was unreasonably dangerous, that Freight-liner failed to warn users of the product of this danger, and that Freightliner’s conduct in the design, testing, and sale of trucks with this fuel system amounted to gross indifference, entitling plaintiffs to an award of both actual and exemplary damages under Texas law.
The case was submitted to the jury on special interrogatories, which found in favor of the Maxeys on their claim that the fuel system and tank were defectively designed, and accordingly awarded the Maxey children $150,000 in actual damages. The jury also found that Freightliner was guilty of gross indifference to the rights and welfare . of others in its design of the fuel system and tank, and awarded $10,000,000 in punitive damages.
In a subsequent Order and Opinion, Max-ey v. Freightliner Corporation, 450 F.Supp. 955 (N.D.Tex.1978), the district court set aside the jury’s verdict on the issues of gross indifference and assumption of the risk, and entered judgment on the verdict for actual damages. Relying upon Sheffield Division, Armco Steel v. Jones, 376 S.W.2d 825 (Tex.1964), and Woolard v. Mobil Pipe Line Co., 479 F.2d 557, 565 (5th Cir. 1973), the district court set aside the jury’s verdict for exemplary damages on the ground that Freightliner’s compliance with industry custom failed to evince “an entire want of care,” and therefore negated a finding of “a degree of ‘gross negligence’ which approximates a fixed purpose to bring about the injury of which the plaintiff complains.” 450 F.Supp. at 963, quoting Sheffield Division, Armco Steel Corporation v. Jones, 376 S.W.2d at 828. Finding that neither decedent possessed subjective awareness of the defects inherent in the fuel system, the district court set aside the jury’s finding of assumption of the risk. Finally, recognizing that this Court might disagree with its decision to set aside the jury’s finding of gross negligence, the district court found that, if exemplary damages were appropriate in this case, the jury’s award of $10,000,000 was not excessive.
On appeal, a divided panel of this Court affirmed. 623 F.2d at 395. Relying upon this Court’s earlier decision in Hernandez v. Smith, 552 F.2d 142 (5th Cir. 1977), as well as Sheffield Division, Armco Steel Corp. v. Jones, supra, a majority of the panel determined that
Under Texas law, there cannot be that “conscious indifference” to the welfare of others constituting gross negligence for purposes of exemplary damages if it is shown that defendant exercised even “slight” care.
623 F.2d at 399, quoting Hernandez v. Smith, 552 F.2d at 143. Concluding that it was “unable to discern from [a] reading of the record evidence of appellee’s failure to use even ‘slight’ care,” the panel majority affirmed the district court’s decision to set aside the award of exemplary damages. 623 F.2d at 399. The panel majority also affirmed the district court’s determination that Freightliner’s compliance with industry custom precluded a finding of gross negligence. With respect to Freightliner’s cross-appeal, however, the panel affirmed the district court’s decision to set aside the jury’s finding of assumption of the risk, as well as its entry of judgment on the award of actual damages. This Court voted to rehear this case en banc, Maxey v. Freight-
II. The Maxeys’ Appeal
In Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc), this Court established the standard by which both this Court and district courts in this Circuit determine whether there is sufficient evidence to submit a case to the jury in connection with motions for directed verdict and for judgment non obstante veredicto. Under the standard established in Boeing, a motion for directed verdict or for judgment n. o. v. should be granted only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. The court should consider all of the evidence — not just that evidence which supports the nonmovant’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded persons in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. A motion for directed verdict or judgment n. o. v. should not be decided by which side has the better of the case, nor should the motion be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of fact, and not the court, to weigh conflicting evidence and inferences, and to determine the credibility of witnesses. 411 F.2d at 374-75.
As noted in the panel opinion of this case, “[t]he problem, however, lies not with merely stating the rules, but with applying them to a particular set of facts.” 623 F.2d at 398. Moreover, cases brought under federal diversity jurisdiction present the additional task of attempting to correctly interpret and apply state law. Following the issuance on August 8, 1980, of the panel opinion in the present case, the Texas Supreme Court decided Burk Royalty Company v. Walls, 616 S.W.2d 911 (Tex.1981), in which that court established a uniform Texas definition of gross negligence, and rejected the “some care” test theretofore often applied by Texas courts in gross negligence cases, as well as by the district court and the panel majority in the case sub judice.
A. The Texas Standard Governing Gross Negligence
The availability of exemplary damages for wrongful death is guaranteed by article 16, section 26 of the Constitution of the State of Texas:
*1372 Every person, corporation, or company, that may commit a homicide, through a wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be ....
Almost one hundred years ago, Chief Justice Stayton of the Texas Supreme Court announced the definition of gross negligence that is still controlling today:
Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise the belief that the act or omission complained of was a result of a conscious indifference to the right or welfare of the person or persons to be affected by it.
Missouri Pacific Railroad Co. v. Shuford, 72 Tex. 165, 10 S.W. 408, 411 (1888) (emphasis added).
Texas courts historically have articulated a number of tests for applying the Shuford definition of gross negligence to the facts of a particular case. Among these is the so-called “some care” test exemplified by the Texas Supreme Court’s decision in Sheffield Division, Armeo Steel Corp. v. Jones, 376 S.W.2d 825 (Tex.1964), in which the court interpreted its earlier decision in Shu-ford to require, as a prerequisite to a finding of gross negligence, that there be “an entire want of care” by the defendant, and that defendant’s conduct be such as to approximate “a fixed purpose to bring about the injury of which the plaintiff complains.” 376 S.W.2d at 828. In so holding, the court rejected the notion that “negligence may be gross, not only when it is evidenced by an entire want of care, but even when the exercise of so slight a degree of care as to justify the conclusion that the party was indifferent to the welfare of others.” Id. Consequently, under the Sheffield rationale, evidence of “some care” by the defendant necessarily precluded a finding of “that entire want of care” described in Shuford, and likewise prohibited a finding of gross negligence. For this reason, the Sheffield rule is referred to by Texas courts as the “some care” test.
In Burk Royalty Company v. Walls, 616 S.W.2d 911 (Tex.1981), the Texas Supreme Court recently had occasion to reassess the principles governing gross negligence in Texas, including the “some care” test theretofore often used by Texas courts. In that case, plaintiff brought suit individually and as next friend and guardian of her minor son, against the employer of her deceased husband, seeking exemplary damages for the gross negligence of defendant in failing to follow certain safety procedures while “pulling” wet tubing from an oil well. During the “pulling” process, plaintiff’s decedent became covered with oil that spewed out of the tubing, and the oil ignited, causing his death. The jury found that the failure of Kenneth Swetnam, a supervisor employed by defendant, to follow approved safety procedures was gross negligence, and accordingly awarded exemplary damages. Finding that there was some evidence to support the jury’s finding of gross negligence, the Texas Court of Civil Appeals affirmed on this issue. Burk Royalty Co. v. Walls, 596 S.W.2d 932 (Tex.Civ.App. — Fort Worth 1980). On appeal to the Texas Supreme Court, the issue presented was “whether there [was] some evidence to support the jury’s finding that Kenneth Swet-nam was grossly negligent on the occasion in question.” 616 S.W.2d at 914. The Texas Supreme Court characterized defendant’s argument as asserting “that there [was] no evidence of such an entire want of care on the part of Swetnam as would amount to conscious indifference and support an award of exemplary damages.” Id. at 915. Defendant’s argument was based on “a number of cases which hold that if there is ‘some care’ exercised, there necessarily cannot be ‘an entire want of care,’ and thus, exemplary damages are improper,” Id., citing, inter alia, Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825 (Tex. 1964).
The Texas Supreme Court began its analysis in Burk Royalty with both an expansive review of the historical development of
It was ... during [the] early period that the first hint of a “some care” test surfaced. In Magnolia Petroleum Co. v. Ford, 14 S.W.2d 97, 101 (Tex.Civ.App.— Eastland 1929), writ ref’d, per curiam, 118 Tex. 461, 17 S.W.2d 36 (1929), the court said, “This very act evidencing some care takes the transaction out of the definition of gross negligence.”
616 S.W.2d at 918 (emphasis in original). The court noted in Burk Royalty that subsequent cases also used the “some care” test as a method for reviewing challenges to jury verdicts of gross negligence:
The last of the cases applying the active/passive test to gross negligence also introduced the “some care” test into the review of gross negligence findings. In Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825 (Tex.1964) the court embracefd] the “some care” test while extending the active/passive distinction.
616 S.W.2d at 918. Based upon its examination of the Texas cases employing the “some care” test, the Texas Supreme Court explained that
[t]he rationale of the “some care” cases is that there cannot be degrees of entire want of care; there is either an entire want of care or there is not. If there is any care, i.e., “some” care, then there cannot be an entire want of care. A thorough search of the appellate decisions of this state has failed to produce a single case in which the jury’s finding of gross negligence against an employer has been upheld on appeal under the “some care” test.
616 S.W.2d at 918-19 (emphasis in original; citations omitted).
After examining the Texas cases defining gross negligence in a variety of ways, the Texas Supreme Court held in Burk Royalty that the original definition of gross negligence as stated in Shu ford is the definition to be used in all gross negligence cases. Relying in part upon prior decisions in which the court had declined to apply the “some care” test, Atlas Chemical Industries, Inc. v. Anderson, 524 S.W.2d 681, 688-89 (Tex.1975); McPhearson v. Sullivan, 463 S.W.2d 174, 176 (Tex.1971); Harbin v. Seale, 461 S.W.2d 591, 593 (Tex.1970), the court also expressly rejected the “some care” test, and specifically overruled its pri- or decisions, including Sheffield, which had applied that test. 616 S.W.2d at 921-22.
The Texas Supreme Court advanced several reasons in support of its decision to overrule Sheffield. First, the court noted that the “some care” test, by allowing a defendant to overturn a jury verdict of gross negligence by a simple showing that there was “some evidence” that did not support the jury’s finding, improperly reversed the traditional burden under Texas law that a party may overturn a verdict only by showing that there is no evidence in support of that finding. 616 S.W.2d at 921. The court emphasized that, contrary to the long-established principle in Texas that a court ruling on a motion for judgment n. o. v. looks only at the evidence in support of the verdict, the “some care” test required a court to set aside a jury verdict if, looking only at the evidence in derogation of the verdict, i.e., evidence of “some care,” an inference of conscious indifference was negated. Id.
Second, the court emphasized that “[i]n testing the jury finding of gross negligence, the phrase ‘entire want of care’ must be understood in the context of the whole sentence. The jury is not simplistically instructed that it must find an ‘entire want of care,’ but ‘.. . such an entire want of care
The essence of gross negligence is not the neglect which must, of course, exist. What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages. The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare, and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care.
616 S.W.2d at 922 (emphasis in original).
From the foregoing, it is readily apparent that the court in Burk Royalty did not undertake to establish a “bright line” test for determining whether or not a defendant’s conduct constitutes gross negligence. Indeed, it appears that the Texas Supreme Court has rejected just such a “bright line” test — i.e. the Sheffield test — for one that demands more rigorous analysis: rather than simply inquiring whether the defendant exercised some care, the proper focus is on the question whether, in light of all of the surrounding circumstances, the requisite mental state is shown.
As noted supra, the Texas Supreme Court’s decision in Burk Royalty was announced after the decisions of both the district court and the panel in the case sub judice. Relying upon Sheffield and decisions of this Court interpreting Sheffield, both the district court and the panel majority determined that the Maxeys’ failure to prove an “entire want of care” by Freight-liner was fatal to the Maxeys’ claim for exemplary damages. Similarly, the district court also relied upon Sheffield for the proposition that gross negligence, to justify an award of exemplary damages, must approximate a “fixed purpose to injure.” 450 F.Supp. at 963-64. In light of the Texas Supreme Court’s subsequent readoption in Burk Royalty of the Shuford definition of gross negligence as the definition to be used in all gross negligence cases, and its determination that “conscious indifference” is the standard by which claims of gross negligence should be measured, we must conclude that the district court’s reliance in the present case on Sheffield was misplaced.
This determination, however, does not settle the issue because it remains necessary to decide whether, under the standard of review established by this Court in Boeing, as informed by the substantive principles articulated in Burk Royalty, the jury’s finding of gross negligence may be sustained. Because the parties have not yet been afforded an opportunity to argue the present case in light of Burk Royalty,
Because we hold that it is necessary to remand this case to the district court for reconsideration in light of Burk Royalty, it is appropriate to briefly address the Max-eys’ argument that, in setting aside the jury’s verdict of gross negligence, the district court improperly relied upon its finding of Freightliner’s compliance with industry custom. Although apparently not holding that compliance with industry custom is an absolute defense under Texas law to claims of gross negligence in all cases, the district court nonetheless quite clearly was of the opinion that Freightliner’s compliance with industry custom negated any such finding in this case:
The critical circumstance is that to sustain this award one must be prepared to hold that the entire automotive and trucking industry in the United States has ... “acted intentionally or wilfully or with that degree of ‘gross negligence’ which approximates a fixed purpose to bring about ... injury .... ”
[Ajdopting a design common to all manufacturers and millions of vehicles for over thirty years is a sufficient effort at safety to preclude a finding that Freightliner acted with an intent which approximates a fixed purpose to bring about this injury-
450 F.Supp. at 964; quoting Woolard v. Mobil Pipe Line Company, 479 F.2d 557, 565 (5th Cir. 1973). In light of the fact that no evidence of other manufacturers’ designs was presented to the jury, the district court’s observation is somewhat curious. Similarly, it is not clear how the district court reached the conclusion that the fuel system on the Maxey truck was common to that of “the entire automotive and trucking industry in the United States.” Although Freightliner elicited testimony at trial indicating that, like Freightliner, no other commercial tractor truck manufacturer located its fuel tanks between the truck rails, or used fuel bladders or fuel cut-off devices— features incorporated in the Maxeys’ proposed alternative designs — the district court’s reasoning overlooks the fact that the Maxeys complain of the defective nature of Freightliner’s design, not Freightliner’s failure to adopt the design alternatives proposed by the Maxeys’ expert. Moreover, examination of the pleadings and trial transcript clearly reveals that the Maxeys complain of Freightliner’s design as a whole, including, inter alia, its location of large lightweight aluminum tanks, which were likely to rupture upon impact, within one or two inches of the outermost portions of the truck body, and in close proximity to the
Of course, this Court fully agrees with the premise — implicit in the district court’s reasoning — that compliance with industry custom can be relevant evidence tending to negate an inference of gross indifference. Consequently, to the extent that a defendant establishes that certain aspects of its design are common to an entire industry, such evidence may, under Boeing, be considered by the district court when ruling on a motion for judgment n. o. v. as tending to negate a jury issue of gross indifference. In making the inquiry, however, a district court must limit its consideration to evidence actually presented at trial, and must be careful not to preempt the jury’s role under the seventh amendment as the sole finder of fact.
III. Freightliner’s Cross-Appeal
Freightliner cross-appeals from the district court’s entry of judgment on the jury’s award of actual damages in the amount of $150,000 for the defective design of the fuel system on decedents’ truck. In support thereof, Freightliner argues that the district court erred in setting aside the jury’s finding that, by using Freightliner’s product, Billy Maxey voluntarily assumed the risk of injury. With respect to exemplary damages, Freightliner argues that if the jury’s finding of Freightliner’s gross negligence is reinstated, the jury’s verdict of $10,000,000 is clearly excessive, and should be reduced.
With respect to Freightliner’s argument that Billy Maxey voluntarily assumed the risk of injury by using Freight-liner’s product, this Court agrees with the district court’s determination that, under the relevant Texas standard as applied by the Boeing test, the jury’s volenti finding is not supported by the evidence. In Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1975), the Texas Supreme Court emphasized that, under Texas law, “the inquiry is whether [decedent] voluntarily exposed [himself] to the risk with knowledge and appreciation of the danger.” Id. at 91. It is not enough that the plaintiff be aware of the defect; “[t]here must be knowledge and appreciation of the particular danger involved so that the plaintiff proceeds to encounter the risk as the result of an intelligent choice.” Ellis v. Moore, 401 S.W.2d 789, 793 (Tex.1966). As the panel stated in the case sub judice, “[c]ases in Texas on volenti or assumption of the risk are clear in requiring subjective knowledge and intelligent appreciation of the specific danger involved.” 623 F.2d at 399. Accord: Green v. Edmands Co., 639 F.2d 286, 289 (5th Cir. 1981). In the present case, Freightliner made no attempt to prove that Billy or Dee Maxey possessed subjective awareness of the extent of the fire hazard that was presented by Freightliner’s design. In this regard, we agree with the panel’s observation that:
[T]he contention that Freightliner as a national manufacturer of truck/tractors was unaware of post-crash hazards relating to side-mounted fuel tanks, but that Billy Maxey, a truck driver and mechanic with a high school education should be charged with knowledge and appreciation of the nature and extent of the risk is unreasonable.
623 F.2d at 395. Consequently, we hold that the district court did not err in setting aside the jury’s finding on the issue of assumption of the risk.
B. The Exemplary Damage Award
With respect to its second point, Freightliner argues that if the jury’s finding of gross indifference is reinstated, the jury’s award of $10,000,000, which is approximately 67 times the size of the $150,-000 award of actual damages to the Maxey children, is clearly excessive, and should be reduced. If anything is clear in the Texas law concerning exemplary damages, it is that exemplary damages must be “proportional,” even though this does not mean there must be an exact ratio. Tynberg v. Cohen, 76 Tex. 409, 13 S.W. 315, 316-17 (Tex.1890). The court in Tynberg, in language never abandoned, continued:
[a] power such as may be exercised by juries in awarding exemplary damages is liable to great abuse, — may often lead to great oppression; and there is no class of cases in which the conservatism of the judge should more frequently find field for action.
13 S.W. at 317.
The rule has been unwavering. The most frequently cited Texas Supreme Court case of recent years on this issue is Southwestern Investment Co. v. Neeley, 452 S.W.2d 705 (Tex.1970), in which the court said “the amount of exemplary damages should be reasonably proportioned to the actual damages found.” Further, the case of First Security Bank & Trust Co. v. Roach, 493 S.W.2d 612, 619 (Tex.Civ.App. 1973) writ ref’d n. r. e., shows five factors, in addition to the reasonable proportionality requirement, have been distilled from prior cases to be used in evaluating whether a punitive damage award is excessive: (1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties, and (5) the extent to which defendant’s conduct offends a public sense of justice and propriety-
This Court has spoken just recently on the reasonable proportional relationship of punitive damages to actual damages under Texas law. In Miley v. Oppenheimer & Co., 637 F.2d 318 (5th Cir. 1981), we upheld an exemplary damage award that was approximately three times the award of compensatory damages. In doing so, the Court said:
*1378 Despite the lack of guidance provided by the cited Texas case law, we are by no means forced to apply the four-part Texas test for assessing the fairness of punitive damage awards to churning cases in a vacuum. Although we do not decide what amount of punitive damages, if any, should be awarded in every intentional, business tort case, we feel that a formula of punitive damages equal to three times compensatory damages is a fairly good standard against which to assess whether a jury abused its discretion. While there is nothing magical about the three-times-compensatory-damages formula, many courts which have weighed the kind of factors which comprise the Texas four-part test in awarding punitive damages for intentional, big business torts have selected that figure.
Id. at 331.
It might be argued that a three to one relationship between punitive and actual damages in an intentional business fraud is not at all related to the proportionality required when the case involves a wrongful death. But the relationship analogy is valuable because it is well established that the purpose of punitive damages is not to compensate those who have felt the loss, but it is instead to create a deterrence to the wrongdoer. Cotton v. Cooper, 209 S.W. 135 (Tex.Cr.App.1919); Lubbock Bail Bond v. Joshua, 416 S.W.2d 523, 530 (Tex.Civ.App. 1967) no writ. Thus, the amount of money damages is relevant in virtually the same way in each instance.
There is no intention to assert here that three to one is the correct proportion. The Texas Supreme Court has recently upheld a wrongful death exemplary damage award of $500,000 in a case where actual damages of approximately $25,000 were assessed. This is a 20 to 1 ratio. But this was a case of low actual damages and high culpability. In addition, it is highly relevant to the overall posture of the case that the plaintiffs son, seriously injured in the same accident, received $500,000 punitive damages on an actual damage award of $226,000, a ratio of only 2.2 to 1. Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex.1981).
It is unnecessary to evaluate this case upon all the five factors set out above. But a critical factor in evaluating the punitive damage award in this case is the showing that no other commercial tractor truck manufacturer utilized the asserted safety features incorporated in the design alternatives proposed by the Maxeys’ experts. The degree of culpability of the defendant wrongdoer is one of the specific factors that is to be taken into account under the Texas law governing punitive damage awards. As a result, the wrongdoer’s degree of culpability must be considered on two levels. It must be considered in order to determine whether the wrongdoer was grossly negligent. In addition, and as part of a separate consideration, it must be evaluated in order to determine the appropriate amount of the punitive damage award. While the degree of culpability of the wrongdoer in this case is perhaps sufficient to establish gross negligence under Texas law, it falls far short of justifying an award of $10 million, since the Maxeys’ alternative designs were not employed by any other manufacturers.
A particular defendant may not be required under Texas law to bear the burden of a punitive damage award aimed at punishing an entire industry. The proportionality requirement obviously is intended in part to stop this very kind of broad punitive motive of a single jury in a single case. As a result, the district court should circumvent a jury’s attempt to discipline an entire industry by way of the industry’s lone representative in a solitary lawsuit. In the case sub judice, the punitive damage award was so excessive as to warrant reversal and reduction under any conceivable interpretation of the Texas law of proportionality and culpability.
This Court, however, should not suggest the exact proportion or the exact amount of
For the foregoing reasons, the judgment of the district court awarding actual damages to the Maxey children is affirmed. The district court’s order granting Freight-liner’s motion for judgment n. o. v. on the jury’s finding of gross indifference is vacated and remanded to the district court for further proceedings consistent herewith.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
. Plaintiffs are Frank Maxey and Mary Maxey, grandparents and next friends of Mary Kathryn Maxey, age twelve, and Carroll Kaylene Max-ey, age nine, children of the decedents.
. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
. The jury awarded no damages to Billy Max-ers parents.
. The district court in the present case rejected Freightliner’s argument that, as a matter of law, exemplary damages are not available in products liability cases in Texas. The court noted that Freightliner failed to offer any authority, decisional or otherwise, in support of such a rule and noted that “[a]t the least, the availability of exemplary damages in strict liability cases is an open question.” 450 F.Supp. at 961. Moreover, the court noted that the only Texas case to squarely address the issue, Heil Co. v. Grant, 534 S.W.2d 916, 926 (Tex. Civ.App. — Tyler 1976), writ ref’d n. r. e., expressly stated that:
We believe that exemplary damages may be recovered under [Tex.Const. art. 16, section 26] in a strict liability action for the death of the user of a defective product.
Although opining that the above-quoted statement in Heil was dicta, and therefore not binding under the rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the district court in the case sub judice concluded that nothing in Texas law would justify recognition of an automatic bar to awards of exemplary damages in all products liability cases. Absent some reason to believe that the Texas courts, when presented with the question, will erect such a bar to the recovery of exemplary damages, which otherwise are guaranteed by the Texas Constitution, this Court is reluctant to do so. Consequently, we find no reason to disturb the district court’s conclusion that “[i]n sum, simultaneous pursuit of actual damages bottomed on principles of strict liability and exemplary damages bottomed on fault concepts are essentially matters
. The court noted that, under this approach [t]he burden is thus shifted to the plaintiff to negate the existence of some care. This is almost an impossible task since anything may amount to some care.
616 S.W.2d at 911.
. The Court voted to decide this case en banc without oral argument.
. Of course, to the extent that the principles announced by the Texas Supreme Court in Burk Royalty conflict with the principles announced in Boeing governing directed verdicts and judgments n. o. v. in federal diversity trials, they are binding on neither this Court nor the district court. Federal courts in this Circuit sitting under diversity jurisdiction do not look to state rules governing the standard of review of jury findings, but rather are bound by the principles established in Boeing. See Boeing, 411 F.2d at 368. The .extent to which such a conflict may be present in the case sub judice is a matter upon which the district court on remand may wish to hear argument.
The inquiry is whether there is that complete absence of care as required by the Texas Supreme Court in Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825, 828 (Tex. 1964) ....
450 F.Supp. at 963. Similarly, this Court stated in Hernandez v. Smith, 552 F.2d 142, 145 (5th Cir. 1977): “Under Texas law, there cannot be that ‘conscious indifference’ to the welfare of others constituting gross negligence for purposes of exemplary damages if it is shown that defendant exercised even ‘slight’ care,” citing Ballenger v. Mobil Oil Corp., 488 F.2d 707 (5th Cir. 1974), cert. denied, 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763. See also Woolard v. Mobil Pipe Line Co., 479 F.2d 557, 565 (5th Cir. 1973).
. For example, the Maxeys’ design expert testified that if it were impractical to locate the fuel tanks in a place other than outside of the frame rails, which was an “anticipated impact area,” the lightweight aluminum used in the tanks on the Maxey truck was “inadequate,” and a stronger material should have been used. T. 359, 362.
. Indeed, Freightliner’s Corporate Service Manager testified that Freightliner itself had once manufactured a truck with the fuel tank mounted directly above the frame rails — a feature similar to one of the Maxeys’ proposed designs. T. 236. Similarly, Freightliner’s witnesses testified that Freightliner manufactured and marketed both aluminum and steel fuel tanks in its trucks, T. 248, and that a variety of tank sizes were offered. T. 665-67. As noted supra, a principal criticism by the Maxeys’ expert of the Freightliner design was the use of large lightweight aluminum tanks. See note 8, supra.
With respect to the district court’s reference to the automobile industry, we simply note that it requires no special knowledge of automobile construction to recognize that the use of large, unshielded, side-mounted fuel tanks is not a design common to the domestic automobile industry. Indeed, particularly noteworthy is the fact that the only evidence of industry custom promulgated by an established industrial organization — an industry standard adopted by the Society of Automotive Engineers (SAE) in 1955, and by the Bureau of Motor Carrier Safety — requiring a gasoline tank to be capable of withstanding a 30-foot drop onto concrete without spillage, was excluded by the district court. T. 266-70.
. The special interrogatories submitted to the jury did not contain an issue on industry custom.
. Freightliner also argues that the evidence presented at trial was insufficient to support the Maxeys’ recovery on the theory of strict products liability. Without repeating the evidence presented by plaintiffs in support of their claim that the fuel system on the Maxey truck was defectively designed, we note our agreement with the district court and panel that the evidence was sufficient to take this issue to the jury. See 623 F.2d at 399-400.
. As has been noted, Freightliner did not attempt to prove at trial that the overall design of the Maxey truck was common to that used by the entire automotive and trucking industry. No evidence of other manufacturers’ designs was presented to the jury.