Pues v. Veterans of Foreign Wars Post No. 8246  
(
Tex.App.- Houston [14th Dist.] Aug. 27, 2009)(Brown)
(
JNOV affirmed, jury verdict disregarded)(liability for tree-felling accident injury, employee or independent
contractor, control over details of work)
Because there is no evidence that Revia was negligent in cutting the tree, the VFW
cannot be liable on this basis.  Cf. Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.
2d 567, 568-570 (Tex. 1972) (holding evidence was legally sufficient to support finding
that employer was negligent for injury sustained by employee while felling trees when
coworker who was hired to watch for falling limbs testified that he “just forgot to look
on this particular occasion”).
Accordingly, we hold that the trial court did not err in granting the VFW's motion for
JNOV and we overrule Pues's issues.
AFFIRMED: Opinion by Justice Brown   
Before Justices Frost, Brown and Boyce  
14-08-00333-CV   Harold Randall Pues v. Veterans of Foreign Wars Post No. 8246  
Appeal from 260th District Court of Orange County
Trial Court Judge: Judge Buddie J Hahn  

M E M O R A N D U M   O P I N I O N

Appellant Harold Randall Pues was injured while assisting in the felling of a tree on the property of appellee
Veterans of Foreign Wars Post 8246 in Vidor.  Following a jury verdict favorable to Pues, the trial court
entered a judgment notwithstanding the verdict in favor of the VFW.  On appeal, Pues contends the trial court
erred in granting the JNOV because the evidence is legally sufficient to support the jury's findings in his
favor.  The VFW responds that the trial court did not err in granting the JNOV and raises six cross-points.

We affirm the trial court's judgment and so do not reach the VFW's cross-points.

I

Although they were not VFW members, Pues and his friend Alfred “Rusty” Revia, Jr. had frequented the VFW
post for years and occasionally volunteered to perform odd jobs for the VFW, including working at barbeques
and fish fries, cutting grass, and doing plumbing work.  On one occasion, a tree limb knocked a hole in a
cook shack on the VFW's property, and Pues and Revia volunteered to cut down and remove the tree.  Pues
was injured when he was struck by a falling limb as he and Revia attempted to fell the tree.  In April 2006,
Pues sued the VFW, alleging negligence, negligent conduct of activity on the premises, and premises defect.  
The VFW answered and designated Revia as a responsible third party.

The case proceeded to trial and a jury found that the VFW exercised or retained control of the tree felling,
Pues and Revia were employees of the VFW in connection with the tree felling, and that the VFW, Pues, and
Revia were each negligent.  The jury apportioned 50 percent of the negligence to the VFW, 25 percent to
Pues, and 25 percent to Revia.  The jury also awarded Pues damages totaling $158,413.22.  On February
28, 2008, the trial court granted the VFW's motion for JNOV and ordered that Pues take nothing.  The trial
court's judgment recited that “[i]t appears to the court that there is insufficient evidence as a matter of law to
support the verdict of the jury and that a directed verdict in favor of [the VFW] would have been proper and
that judgment notwithstanding the verdict should be rendered in favor of [the VFW].” This appeal followed.

II

In two issues, Pues contends that the trial court erred in granting the JNOV in favor of the VFW and that the
evidence is legally sufficient to support the jury's findings in Pues' favor.  The VFW responds that the
evidence is legally insufficient to show that the VFW controlled the tree felling or to show that an employer-
employee relationship existed between the VFW and Pues and Revia.  The VFW also contends that the
evidence shows as a matter of law that Pues and Revia were independent contractors.  Further, the VFW
contends that the evidence is legally insufficient to sustain the jury's findings under alternative theories of
recovery, including inherently dangerous activity, nondelegable duty, premises defect, and inexperience, and
that the evidence is legally insufficient to show negligence or proximate cause.

A

A trial court may disregard a jury's verdict and render a judgment notwithstanding the verdict if no evidence
supports one or more of the jury's findings or if a directed verdict would have been proper.  Tiller v. McLure,
121 S.W.3d 709, 713 (Tex. 2003).  When examining a legal-sufficiency challenge, we review the evidence in
the light most favorable to the challenged finding and indulge every reasonable inference that would support
it.  City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  We credit favorable evidence if reasonable
jurors could and disregard contrary evidence unless reasonable jurors could not.  Id. at 827.  The evidence is
legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review.  Id.

B

Pues first contends that the evidence is legally sufficient to support the jury's answers to Questions 1, 4, and
5.  Question 1 asked the jury:  “Did the [VFW] exercise or retain some control over the manner in which the
occurrence in question was performed, other than the right to order the work to start or stop or to inspect
progress or receive reports?”  Question 4 asked whether, on the occurrence in question, Pues was acting as
an employee of the VFW.  Question 5 asked the same of Revia.  The jury answered all three questions
affirmatively.

Pues asserts that the evidence shows that both Pues and Revia testified that Nelson Reeves of the VFW was
supervising their work on the tree and telling them how to place the rope and how to cut the tree, and that the
method and procedure to cut the tree was specifically discussed and agreed to by Pues and Revia.  To
support the jury's findings that Pues and Revia were employees, Pues asserts that this evidence shows that
the VFW had the right to and did control the details of the work.  Additionally, Pues argues that, to prove that
he was an employee, he was not required to show the existence of a contract for hire or that the VFW paid
him for his work.  Instead, Pues contends, there need only be an express or implied understanding that the
employer has the right to direct the details of the work and not merely the result to be accomplished, citing
Doe v. Boys Club of Greater Dallas, Inc., 868 S.W.2d 942, 949-50 (Tex. App.-Amarillo 1994), aff'd, 907 S.W.
2d 472 (Tex. 1995).

Pues also contends the evidence is legally sufficient to support the jury's finding in Question 2 that the VFW
was negligent because it showed that the VFW failed to adequately supervise Pues and Revia and failed to
provide Pues with necessary machinery, equipment, and tools.  See LMC Complete Automotive, Inc. v. Burke,
229 S.W.3d 469, 476 (Tex. App.-Houston [1st Dist.] 2007, pet. denied).  Specifically, Pues argues that the
evidence shows that both Pues and Revia testified that with a block and tackle, crane, jig lift, or cherry picker,
the tree could have been felled with “one cut.”  Further, Pues asserts that he testified that the VFW caused
or contributed to the accident because it did not have more equipment for him to work with, including ropes
and ladders.  Pues also contends the evidence shows that the VFW failed to properly supervise Pues and
Revia because Pues was too close to the tree and could not move out of the way when the top of the tree
came down.

C

At trial, Pues testified that he lived in Vidor and worked as a heavy-equipment operator for contractors at
various plants around Orange.  He started going to the VFW post even though he was not a veteran because
it was “about the only place around to go and shoot pool and play dominoes and dance.”  He would usually
go there with his friend, Revia.  At the VFW, Pues and Revia would socialize with Nelson Reeves and Ed
Stunkard, both of whom were members of the VFW.  At some point, at the request of Reeves or Stunkard,
Pues and Revia began volunteering to do odd jobs such as cooking at fish fries, cutting grass, or plumbing.[1]

Concerning the incident that led to this lawsuit, Pues explained that a storm had blown a tree over and a limb
had knocked a hole in the VFW's cook shack.  Reeves and Stunkard asked Pues and Revia “a few times” if
they would cut down the tree so that the shack's roof could be repaired, and they agreed.  Although he had
felled trees before, Pues did not consider himself an expert tree cutter.  The VFW arranged to open the
gates on the property, and when Pues and Revia arrived, Reeves was there.[2]  Pues brought a chain saw
with him, but expected the VFW to have “some rope and a ladder and things like that.”  Pues had a rope in
the back of his truck, and even though he did not bring it specifically for the purpose of felling the tree,
Reeves “said it would be sufficient,” so they used it.

Pues explained that there was a “high line” or power line that ran between the building and the tree, and
because the VFW did not want anything falling down on the high line, Reeves told them to “cut one side of
the tree first, all the way up on one side and then top it out and bring it down one -- one piece at a time.”  
Pues stated that the VFW also wanted some of the wood cut up in a certain size to use in their barbeque pit,
and the rest to be put in a brush pile.

Pues testified that Reeves was a “know-it-all” and that he was “telling [him] how to do [his] job.”  When asked
if he felt like Reeves exercised control over how he did the work, Pues answered, “That's correct.”

Pues and Revia used Pues's rope to lower the limbs to the ground as they were cut.  After Pues and Revia
cut the limbs from one side of the tree, they proceeded to cut the top of the tree.  Revia was in the tree and
Pues was standing on the ground below the tree holding the rope, when Revia cut the top of the tree and it
fell on Pues and injured him.  Pues was not on a ladder, he stated, because “[t]hey didn't have a ladder.”  
When asked if he thought the rope was long enough, Pues testified, “at the time, yes - - it was long enough.”

Pues also testified concerning the treatment for his injuries, his damages, and his lost wages.  When asked
whether he was an employee of the VFW, Pues testified that he understood being an employee to mean that
'you get paid.”

During the presentation of the defense, the VFW presented portions of Pues's earlier deposition testimony.  
In his deposition, Pues explained that the reason he and Revia were removing the limbs from one side of the
tree - specifically, the side opposite the building - was so that when the tree came down the branches would
not catch the electrical line running to the building and bring the line down with the tree.  When the top of the
tree came down, Pues stated that he was four or five feet from the tree because the rope was not long
enough for him to stand farther away.  However, he testified that, at the time, he did not think they needed a
longer rope, and there was no discussion beforehand about whether the rope was long enough.  When
asked if there was anything preventing him from getting a longer rope when he saw that he had to stand
within four or five feet of the trunk, Pues stated that he did not know the rope was too short.  But he admitted
that he knew that he could stand no more than four or five feet away from the tree because of the length of
the rope.  Further, even when Revia was cutting off the top of the tree and Pues was standing there, Pues
still believed he had enough rope.

When asked what the VFW did or did not do that caused or contributed to the accident, Pues stated that the
VFW “could have had a little more equipment there for us to work with” such as ropes and ladders.  Further,
if the VFW had a cherry picker, Pues could have handled it “all in one lick.”  However, Pues also
acknowledged that he had cut trees in the same way - by trimming the limbs, cutting the top off, and removing
the trunk in sections - many times.  He also had felled trees this way with Revia on a few occasions.  Pues
agreed that he was not cutting down the tree on the VFW property differently than he had done it on previous
occasions.  He also admitted that there was no reason he could not have declined the request to cut down
the tree.  Further, Pues admitted that if he had it to do over again, there was nothing he would have done
differently in cutting the tree down.  He testified that he would not have stood farther away from the tree or
gotten a longer rope.

Revia's testimony was presented to the jury by deposition.[3]  Revia testified that he was a construction
worker and that he, like Pues, started going to the VFW post to sit in the air conditioning, drink beer, play
dominoes, shoot pool, and socialize.  He and Pues, whom he had known for about twenty years, would go
there two or three times a week.  Revia was neither a veteran nor a member of the VFW.

Revia explained that from time to time Reeves and Stunkard would ask them to do “small stuff” for the VFW
like plumbing work and mowing the grass.  Reeves and Stunkard would tell them how to do these things.  
When asked who controlled the specifics of the mowing and plumbing work, Revia testified that “Mr. Nelson
[Reeves] would tell me what he wanted done and point it out, and I'd tell him what I needed.”  He agreed that
Reeves was “hands-on” and a “know-it-all.”  Revia also volunteered at fish fries and barbeques, and the
VFW, usually through Reeves, would provide the food and tell him what to cook.  On cross-examination,
Revia agreed that he was free to use his own means and methods when performing the plumbing and
mowing work, and he cooked according to what the VFW planned to serve.

Revia explained that some time after the tree limb had fallen through the roof of the cook shack, they were all
sitting in the VFW post at the domino table when Reeves and Stunkard started talking about removing the
tree and fixing the shack's roof.  They said the VFW could not afford a tree service and carpenters, so Revia
told them he could do it for them.  They had three or four conversations about the tree, during which the
VFW told him that they wanted the wood cut into lengths for firewood and stacked by the barbeque pit.  
Concerning avoiding the high line, they “all stood around the tree and talked about how we were going to
have to do it.”  Revia agreed that the way he did it “was the way they told [him] to do it.”  He also testified that
certain equipment, such as block and tackle, cranes, and jig lifts can be used to cut down trees more easily.  
Revia told Reeves that if they had some heavy equipment they could “just snatch onto the tree and cut it one
time and take the whole tree out.”  But in response, Reeves stated that the VFW could not afford such
equipment.

Revia testified that the VFW did not provide the chain saw or rope because it did not have them, and that
Reeves told them to use the rope they had in the back of the truck.  Because the VFW had no ladder, Revia
used his own climbing spikes and safety harness to climb up the tree.  Revia explained that he cut the limbs
from one side of the tree because the fence, the building, and the power line, which ran through the tree
limbs to the building, were in close proximity.  He agreed that it “had to be done that way.”  When he cut the
top of the tree, it was supposed to fall over and be let down with the rope Pues was holding, but instead it
jerked the rope out of Pues's hand and fell to the ground, injuring Pues.

On cross-examination, Revia explained that when he volunteered to fell the tree, he was also speaking for
Pues, and that felling the tree was “a verbal agreement between all of us.”  Revia acknowledged that
Stunkard asked him several times when he and Pues would fell the tree.  Then, on one weekend when he
and Pues were not working and “didn't have anything to do,” they went to the VFW in Pues's truck.  Reeves
and Stunkard unlocked the gates for them and let them in.  Pues had his chain saw and a rope in the back of
his truck; Revia brought his harness and spikes.  Revia stated that the VFW had told Pues and him
beforehand that the VFW did not have a chain saw or other equipment and “to bring ours.” Revia agreed
that, because of the confined space created by the building, the fence, and the power line, there was no
other way to fell the tree.  He also stated that it was “pretty much standard procedure when you are taking a
tree down like that.”

Revia testified that he had trimmed and felled trees in the same way “many times” before, and that he had
felled trees of the same size that way about ten or fifteen times.  He and Pues had done it together about five
times.  Consequently, Revia testified, when he told Stunkard he could fell the tree, he knew how he was going
to do it.  Further, when they were actually felling the tree, he agreed that he was doing it the way he had
originally anticipated doing it.  Revia also testified that, in the previous five times he and Pues had felled a
tree, Revia was the one in the tree.

While they were working on the tree, Reeves would tell Revia “which limb to put a rope on and to make sure
[he] was tying knots.”  But if Revia disagreed he would tell Reeves how he would do it, and, because Revia
was the one “up in the tree,” he would usually win the disagreements.  Revia agreed that he understood he
was going to fell the tree using his own means and methods, and although someone from the VFW could
make suggestions, he was going to rely on his own experience to complete the job.  Revia also testified that
he never considered himself an employee of the VFW, and Pues never said anything to him to indicate that
Pues considered himself an employee.  Revia agreed that neither he nor Pues nor the VFW were responsible
for the accident.

Revia also testified that he and Pues had the equipment they needed to do the job right, and he knew
nothing about the rope not being long enough.  He agreed that Reeves suggested they use the rope they
had in the back of the truck.  Revia did not hear Reeves telling Pues anything about how to do his part of the
job.  He also stated that no one at the site was more knowledgeable about how to fell the tree than he, and
Pues was probably as knowledgeable as he.  When Revia went to cut the top section of the tree, he knew
that Pues was positioned about three or four feet away from the tree holding the rope.  Revia stated that if he
had it to do over, he would not trim and fell the tree any differently.  He also testified that he would not use a
block and tackle or jig because there was really no room to get anything like that in there.

D

Much of the evidence at trial and the parties' arguments on appeal are directed to whether Pues and Revia
were employees or independent contractors and whether, in either case, the VFW exercised sufficient control
over Pues's and Revia's work to be liable for Pues's damages.  However, for purposes of resolving Pues's
issues, we will assume without deciding that the evidence is legally sufficient to support the jury's findings that
Pues and Revia were the VFW's employees, and address whether Pues presented legally sufficient evidence
that the VFW was negligent and that its negligence caused Pues's injuries.

To impose liability for negligence, Pues must present evidence of a legal duty owed by one person to
another, a breach of that duty, and damages proximately caused by the breach.  Kroger Co. v. Elwood, 197 S.
W.3d 793, 794 (Tex. 2006).  An employer has a duty to use ordinary care in providing a safe workplace.  Id.  
It must, for example, warn an employee of the hazards of employment and provide needed safety equipment
or assistance. Id.  But an employer is not an insurer of its employees' safety.  Id.  It owes no duty to warn of
hazards that are commonly known or already appreciated by the employee and no duty to provide equipment
or assistance that is unnecessary to the job's safe performance.  Jack in the Box v. Skiles, 221 S.W.3d 566,
568 (Tex. 2007) (per curiam); Kroger Co., 197 S.W.3d at 794.  Moreover, when an employee's injury results
from performing the same character of work that employees in that position have always done, an employer is
not liable if there is no evidence that the work is unusually precarious.  Kroger Co., 197 S.W.3d at 794.

Proximate cause requires both foreseeability and cause in fact.  D. Houston, Inc. v. Love, 92 S.W.3d 450, 454
(Tex. 2002).  Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated
the dangers his negligent act creates for others.  Id.  Cause in fact means that the defendant's act or
omission was a substantial factor in bringing about the injury which would not otherwise have occurred.  
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995), abrogated on other grounds, Ford Motor Co.
v. Ledesma, 242 S.W.3d 32 (Tex. 2007).  It is not enough to show cause in fact of the defendant's negligence
did no more than provide a condition which made the injury possible.  Id. at 776. The plaintiff may not
establish these elements by mere conjecture, guess, or speculation.  Doe v. Boys Clubs of Greater Dallas,
Inc., 907 S.W.2d 472, 477 (Tex. 1995).  Rather, the evidence must go further and show that such negligence
was the proximate, and not the remote, cause of the resulting injuries and justify the conclusion that such
injury was the natural and probable result thereof.  Id.  Even if the injury would not have occurred but for the
defendant's actions, the nexus between the defendant and the plaintiff's injuries may be too attenuated to
constitute legal cause.  Id.; Union Pump Co., 898 S.W.2d at 776.

Pues contends the evidence supports the jury's findings that the VFW and Revia were negligent.  First, Pues
contends that the VFW breached a duty to provide necessary machinery, equipment, and tools for Pues,
pointing to Pues's and Revia's testimony that the tree could have been felled and removed with one cut with a
block and tackle, crane, jig lift, or cherry picker.  But although there was testimony that machinery or
equipment of the type Pues described could be used to fell trees more easily, the testimony also showed that
such machinery or equipment could not have been used in the confined area where the tree was located.  
Revia testified he told Reeves that if they had some heavy equipment they could just “snatch” the whole tree
at once, but he also admitted that the tree had to be cut in the way they did it because of its proximity to the
fence, the cook shack, and the power line, and that there was no other way to remove the tree.  Revia also
testified that the manner in which they removed the tree was “standard procedure” in that situation, and that
when he volunteered to fell the tree, he anticipated removing it in the manner they ultimately used.  Pues
likewise admitted that the reason they were trimming the limbs on one side first was so that when the tree fell,
it would not bring down with it the electrical line running to the cook shack.  Further, Pues stated that if he
had it to do over again, he would not have done anything differently.

Neither Pues nor Revia testified that a block and tackle, crane, jig lift, or cherry picker should have been used
in this specific situation instead of using a rope and chainsaw or that Pues would not have been injured if
another method had been used.  Additionally, there was no evidence that it was improper or unsafe to fell the
tree in the manner they attempted.  Indeed, Pues agreed that he was cutting down the tree on the VFW
property in the same way he had felled trees on previous occasions.  

An employer has no duty to provide equipment or assistance that is unnecessary to the job's safe
performance.  Kroger Co., 197 S.W.3d at 794; LMC Complete Automotive, Inc., 229 S.W.3d at 476; see also
Collins v. Singer Sewing Mach. Co., 239 F.2d 705, 706 (5th Cir. 1957) (employer not liable for failing to
provide tools and equipment when plaintiff testified that he knew of no tools or equipment that employer could
have supplied).

Pues also points to his testimony that the VFW could have provided more equipment for him to work with,
including ropes and ladders.[4]  Specifically, Pues contends that the VFW failed to supply sufficient rope to
Pues, which resulted in him standing directly under the top of the tree at a distance of only three to five feet
when he was injured.  Pues acknowledges his testimony that he believed he had sufficient rope, but argues
that when read in context, his testimony shows that he believed he had sufficient rope when he removed it
from his truck and at the time Revia was beginning to remove the top of the tree, but that he was standing too
close to the tree because the length of rope was insufficient.  Pues also testified that he thought he had
enough rope to stand more than four or five feet from the tree.  From this evidence, Pues contends, the jury
could have determined that but for the VFW's failure to supply a longer rope, Pues would have been further
away from the tree and would have avoided the accident.

We conclude that when viewed in context the evidence does not support Pues's argument.  Pues testified
that “at the time” he and Revia did not think they needed a longer rope, and after they took his rope from the
trunk and examined it, they had no discussion about the sufficiency of the rope's length.  This testimony
shows that at the time Pues and Revia undertook the job, they believed they had sufficient rope.  Pues also
admitted that during the job as he was standing four or five feet from the tree and Revia was preparing to cut
off the top of the tree, he believed he had enough rope.  At no time did he appear to believe the rope was
insufficient or that he should have been standing farther away.  Also, Revia testified that he and Pues had
the equipment they needed to perform the job correctly, and he knew nothing about the rope not being long
enough.  Indeed, Revia testified that, when he went to cut the top of the tree that fell on Pues, he knew where
Pues was positioned because he and Pues “were talking about it.”  He explained that Pues was standing
about three or four feet from the tree holding the rope so that he could “put [his] foot against it and have
some leverage.”  Likewise, Pues himself testified that if he had it to do over again, he would not have stood
farther away from the tree or gotten a longer rope.[5]

Thus, the evidence does not support Pues's assertion that if he had additional rope he would have stood
farther away from the tree and avoided the accident.  See City of Keller, 168 S.W.3d at 812 (stating that
“evidence cannot be taken out of context in a way that makes it seem to support a verdict when in fact it
never did”).  Viewing the evidence in a light most favorable to the verdict, and assuming the VFW was
obligated to supply a rope, there is no evidence that its failure to do so was a proximate cause of Pues's
injuries.  See Union Pump Co., 898 S.W.2d at 775.

Next, Pues asserts that the VFW failed to adequately supervise him because he “was so close to the tree
when he was injured that he was surprised and could not move out of the way.”  But as we have discussed,
there was no evidence that Pues should not have been standing near the tree or that if he had been farther
away from the tree he would not have been injured.  To the contrary, Revia's testimony indicates that Pues
was standing where he was to get “leverage” before the tree top was lowered down, and both Revia and
Pues acknowledged that if they had it to do over again, they would have done nothing differently in felling the
tree.  There was also no evidence that Reeves or anyone else connected with the VFW gave any
suggestions or instructions to Pues or Revia that caused or contributed to Pues's injuries.  Thus, this case is
distinguishable from Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), cited by Pues, in
which the supreme court held that there was legally sufficient evidence of proximate cause when a general
contractor's supervisor knew of and approved acts that were dangerous and unsafe.  See id. at 784-85.

We understand Pues's complaint to be that the VFW failed to warn him of the possible dangers of standing
near a tree being cut down.  But an employer owes no duty to warn of hazards that are commonly known or
already appreciated by the employee.  Jack in the Box, 221 S.W.3d at 568; Kroger Co., 197 S.W.3d at 794.  
The duty to warn or caution an employee of a danger arises when (1) the employment is of a dangerous
character requiring skill and caution for its safe and proper discharge, and (2) the employer is aware of the
danger and has reason to know the employee is unaware of the danger.  Nat'l Convenience Stores Inc. v
Matherne, 987 S.W.2d 145, 149 (Tex. App.-Houston [14th Dist.] 1999, no pet.); Allen v. A & T Transp. Co.,
79 S.W.3d 65, 70 (Tex. App.-Texarkana 2002, pet denied).  An employer's duty to instruct applies only to an
inexperienced employee, not to one who is experienced in the work he is assigned.  Matherne, 987 S.W.2d at
149; Allen, 79 S.W.3d at 70.

Here, the VFW was not in the business of felling trees, and there was no evidence that Reeves had any
experience or knowledge concerning cutting down trees.  Indeed, both Pues and Revia characterized Reeves
as a “know-it-all,” which to Pues meant that Reeves was “[s]omebody that knew a little bit about everything.”  
In contrast, Pues and Revia were experienced tree cutters who attempted to fell the tree in the same manner
they had done on previous occasions.  Revia testified that he had worked for a tree service and had felled
trees in the same way many times before, and had felled trees with Pues several times before.  Revia also
testified that no one at the site was more knowledgeable about cutting trees than he, and that Pues may have
been as knowledgeable.  

Pues also acknowledged that he had cut down trees in the same way many times, and he had done so with
Revia “a few times.”  Pues also testified that he could have declined the VFW's request to cut down the tree.  
Moreover, both Revia and Pues testified that they would have done nothing differently if they had it to do
over again.  Under these facts, the VFW had no duty to warn Pues and Revia of any danger associated with
standing under a tree as it is being cut, especially when they were experienced at felling trees in the same
manner and voluntarily decided to fell the tree.  See Jack in the Box, 221 S.W.3d at 568 (holding employer
owed no duty to experienced employee who was injured when he voluntarily decided to use ladder to unload
trailer injured when trailer's lift gate was broken); Matherne, 987 S.W.2d at 149 (holding that employer had no
duty to instruct employee concerning dangers of driving his car when performing job-related duties); Allen, 79
S.W.3d at 71 (holding that employer had no duty to instruct experienced employee in his chosen trade); see
also Davis v. W.T. Carter & Bros., 19 S.W.2d 336, 338 (Tex. Civ. App.-Beaumont 1929, writ ref'd) (holding
that lumber manufacturer was not negligent when employee was struck by limb that fell unexpectedly as
employee was cutting down tree).  Even if the VFW did owe a duty to supervise Pues and Revia's work, there
is no evidence that anyone connected with the VFW failed to provide proper instruction or gave unsafe or
dangerous instructions that caused Pues's injuries.

Lastly, Pues contends that the VFW was responsible for Revia's negligence.  See LMC Complete Automotive,
229 S.W.3d at 476.  Pues asserts that the jury could have found that Revia was negligent for cutting the top
of the tree without sufficient clearance to assure that Pues would not be hit by the falling tree, as the VFW's
counsel argued to the jury and in its motion to designate Revia as a responsible party.  But jury argument
and motions are not evidence.  There is no evidence that Revia was careless or failed to ascertain where
Pues was as he cut off the top of the tree.  Pues testified that when Revia cut the top of the tree, the limb
suddenly “just kicked out” and he could not get away from it.  There was no testimony that Revia was cutting
the tree in an improper or unsafe way.  And, as discussed above, Revia knew where Pues was standing when
he prepared to cut off the top of the tree because they were discussing Pues's location at the time.  

Because there is no evidence that Revia was negligent in cutting the tree, the VFW cannot be liable on this
basis.  Cf. Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 568-570 (Tex. 1972) (holding evidence
was legally sufficient to support finding that employer was negligent for injury sustained by employee while
felling trees when coworker who was hired to watch for falling limbs testified that he “just forgot to look on this
particular occasion”).

Accordingly, we hold that the trial court did not err in granting the VFW's motion for JNOV and we overrule
Pues's issues.

* * *

We overrule Pues's issues and affirm the trial court's judgment.

/s/      
Jeffrey V. Brown

Justice

Panel consists of Justices Frost, Brown, and Boyce.

[1]  At the time of trial, Reeves was deceased.  Stunkard did not testify.

[2]  Pues testified that Reeves, Stunkard, and some others came to watch, but although some came and
went, Reeves stayed there the entire time.

[3]  Revia was incarcerated at the time of the deposition, and apparently did not appear at trial for this reason.

[4]  On appeal, Pues does not argue that he needed a ladder to properly perform his part of the tree-cutting
operation.  His only testimony concerning a ladder was that he was not on a ladder at the time because the
VFW had no ladder.  However, Pues and Revia had cut down trees in a similar way at least five other times,
and neither of them testified that Pues had used a ladder before or how he would have used a ladder if he
had one.  The only specific testimony about the use of a ladder was Revia's testimony that, because there
was no ladder, he used his climbing spikes and safety harness to climb up the tree.  Revia also testified that
when he and Pues had previously cut trees, he was the one who went up the tree.  There was no evidence
that the lack of a ladder in any way caused or contributed to Pues's injuries.

[5]  Pues argues that the VFW's argument to the jury that Pues was negligent because he was too close to
the tree in a “zone of danger” supports his argument that the rope was too short.  But argument of counsel is
not evidence.  McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.-Dallas 1993, no writ) (“Motions
and arguments of counsel are not evidence.”).