It is implicit in the notion of law — rules known in advance, applied consistently and evenhandedly to all litigants — that judges must sometimes apply rules they personally do not like. Appellate justices must sometimes affirm judgments they might not have rendered if they had sat as the trier of fact. We are not the only decisionmakers in the legal system. The legislature and the supreme court set rules that we must faithfully apply, and the trier of fact decides fact questions which we ordinarily must accept. The rules that we live under mandate that we can set aside a jury verdict only under the most limited of circumstances.
In the last few years the supreme court has stressed again and again that courts of appeals may not sustain factual sufficiency points and reverse judgments based on jury verdicts without detailing the evidence and stating why the verdict was so against the weight of the evidence as to be manifestly unjust and wrong. It is not enough for an appellate court to review the evidence and state its conclusion that the evidence is factually insufficient. See, e.g., Cropper v.Caterpillar Tractor Co., 754 S.W.2d 646, 652 (Tex. 1988);Lofton v. Texas Brine Co., 720 S.W.2d 804, 805 (Tex. 1986); Alm v. Aluminum Co. of America, 717 S.W.2d 588, 594-95 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
In several instances the supreme court has reversed the court of appeals twice in the same case and sent the cause back for a second factual sufficiency analysis because the court of appeals did not faithfully detail the evidence and explain why it was factually insufficient. See, e.g., Aluminum Co. ofAmerica v. Alm, 785 S.W.2d 137 (Tex. 1990); Lofton v.Texas Brine Co., 777 S.W.2d 384 (Tex. 1989); Cropperv. Caterpillar Tractor Co., 754 S.W.2d 646 (Tex. 1988). Needless to say, we must detail and consider all the evidence that supports a jury's finding, and we must state why the jury was not entitled to believe it.
The majority has not fairly applied the teaching of these cases. Here the majority holds that the jury's failure to find negligence and its failure to find proximate cause are against the weight of the evidence. But the majority has not fully and accurately recited the evidence bearing on the controlling issues. Indeed, the majority opinion does not even cite several pieces of evidence that support the jury's failure to find negligence and proximate cause.
Plaintiffs' theory was that on earlier occasions pilot Molberg had flown the airplane so fast that the metal in the right wing was stressed and fatigued, which caused the wing to fall off later when plaintiffs' decedent was Molberg's passenger in the plane, and that such a result was foreseeable. Proximate cause requires proof of "but for" causation and foreseeability. See El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987); Missouri Pac. R.R. v.American Statesman, 552 S.W.2d 99, 103 (Tex. 1977).
As to two of the three elements of plaintiffs' liability case — negligence and causation in fact — the jury's failure to answer "yes" was not against the weight of the evidence. If I am right about either negligence or but-for causation, the judgment should be affirmed.
1. Negligence. Under plaintiffs' theory, the act of negligence was Molberg's allegedly flying the plane past the "red line" — the speed beyond which flight may stress the plane beyond its designed capacity. Molberg died in the crash and therefore was not available to testify. Three witnesses testified that Molberg had told them he had flown the plane past the red line. Two of the witnesses *Page 77 said Molberg admitted doing this "routinely." Even if this had been all the evidence on the issue of negligence, I think the jury was entitled to disbelieve the hearsay testimony involving a deceased declarant.
But there was other evidence. Several witnesses testified that Molberg was an exemplary pilot, and that they had flown with him or had seen him perform aerobatic maneuvers but had never seen him exceed the red line or overstress the plane.
Swearingen himself testified, "There wasn't anything wrong with operating that airplane that way a few times. But not every day." This amounts to a statement that when Molberg did aerobatic maneuvers, even if he exceeded the red line, it was not negligence unless it happened too often. Certainly the jury was entitled to conclude that it had not happened too often.
Swearingen also testified that Molberg told him he had not exceeded the red line, which directly contradicts the hearsay testimony. Swearingen testified:
Q . . . Why didn't you go to Jan Molberg and warn her that her husband was abusing this airplane?
A In my conversations with Forest [Molberg], which was not very long before that, Forest assured me that he was — while doing aerobatics, that he was doing gentle aerobatics, very gentle use of the controls, and that he was not exceeding the red line of the airplane and that he was not pulling more than 4 G's. And I believed him. I had heard rumors or reports that he was exceeding the limits, but he was very convincing and I'd known him for a long time. And I was reassured.
. . . I didn't think that it was hazardous to fly the airplane. I flew it myself. (emphasis added)
In this passage, Swearingen directly contradicts the witnesses who said Molberg admitted exceeding the red line. If jury trial means anything, it means that the jury was entitled to believe Swearingen's testimony that Molberg said he did not exceed the red line when he performed aerobatics.
It is an abuse of our power to hold that a jury unjustly goes against the weight of the evidence when it does not believe hearsay testimony. This is especially true when other evidence contradicts the hearsay evidence. We must remember that the question for us is not what we would have decided, or what most juries would have decided, but whether this jury's failure to answer "yes" was so against the weight of the evidence as to be unjust and manifestly wrong. The majority has not explainedwhy a jury may not disbelieve hearsay testimony, especially when other evidence directly contradicts it. Jurors are "the sole judges of the credibility of the witnesses and the weight to be given their testimony. . . ." TEX.R.CIV.P. 226a(III).
2. Causation in fact. Expert witnesses testified that assuming Molberg had exceeded the red line speed as alleged, his conduct probably caused metal fatigue, which probably caused the fatal crash. But even if the jury believed the three witnesses to Molberg's hearsay statements, there was also evidence that Molberg's red-line overloads were not done often enough to stress the wing. An expert testified that to cause metal fatigue failure, a pilot would have to exceed the red-line speed "all day, every day," or every weekend, or at least on a regular basis. The jury could have credited this evidence and thought that whatever Molberg did did not cause metal fatigue, or did not cause the crash. Swearingen said that he did not think the plane had been stressed and that he flew in it without fear.
There was some indication in the evidence that the wing may have been stressed before Jaffe bought the plane — that is, that Molberg did not cause the stress and metal fatigue. But it makes no difference whether the record shows an alternate explanation for the crash. The majority is invading the jury's function when it says there is no other satisfactory explanation for the crash. The jury was entitled to conclude that the proof did not establish plaintiffs' theory that Molberg's alleged activities caused it, even if there was no other explanation. No rule of law that I know of requires a defendant to offer a non-culpable explanation for an accident. No one suggests that res ipsa loquitur applies to this case.
*Page 78 The jury's refusal to find cause in fact is within the evidence because the jury could have believed (1) that Molberg did not exceed the red line and stress the right wing, or (2) that he did not exceed the red line often enough to stress the wing. Those were issues presented by conflicting evidence, and the jury had the right to resolve the conflict either way.
3. Foreseeability. I agree with the majority that the testimony that Swearingen and Molberg could not have foreseen this accident does not refute proximate cause. The issue is whether this occurrence or somesimilar occurrence was foreseeable. Nevertheless, the jury had to find that a reasonable person in Molberg's position should have foreseen that taking the plane past the red line could cause metal fatigue and later cause a wing to fall off.If the jury had believed that Molberg hadroutinely exceeded the red line, I agree that the jury's implied failure to find that wing failure was foreseeable would be against the weight of the evidence. As stated above, however, the evidence was in conflict as to whether Molberg had exceeded the red line, and if he had, whether he had done it often enough to cause metal fatigue.
Defendants did not have to produce evidence to refute plaintiffs' theory of the case. A jury is given considerable leeway to decide that the party with the burden of proof has not met its burden. That is especially true when the central facts are disputed. It is even more true when the plaintiff's case rests on hearsay.
The majority has decided that the jury failed to follow the law and the evidence. But the majority's decision is itself a failure to follow the law, which severely limits an appellate court's authority to set aside a verdict. How can a court that ignores an unbroken line of supreme court cases expect litigants and trial courts to follow its own decisions?
Because the majority's decision cannot possibly be squared with Cropper, Lofton, Alm, and Pool, I dissent.