Applebaum v. Michaels, 7593

• Decision Date: 13 October 1964
• Docket Number: No. 7593,7593
• Citation: 384 S.W.2d 148
• Parties: Jack M. APPLEBAUM, Individually and d/b/a Applebaum Iron & Metal Company, Appellant, v. W. G. MICHAELS, Appellee.
• Court: Texas Court of Appeals

Page 148

384 S.W.2d 148

Jack M. APPLEBAUM, Individually and d/b/a Applebaum Iron &amp Metal Company, Appellant, v. W. G. MICHAELS, Appellee.

No. 7593.

Court of Civil Appeals of Texas, Texarkana.

Oct. 13, 1964.

Rehearing Denied Nov. 3, 1964.

Chester Ball, Harris & Ball, Arlington, for appellant.

Franklin Jones, Sr., Franklin Jones, Jr., Jones, Brian, Jones & Baldwin, Marshall, for appellee.

FANNING, Justice.

Plaintiff-appellee sued defendant-appellant for damages for personal injuries and property damage, and medical, hospital, drug, etc., expenses, arising from an automobile-truck collision in the City of Marshall, Texas, on December 13, 1961.

In response to special issues submitted, the jury in the cause found to the effect that the defendant negligently and proximately caused the injuries to plaintiff in these respects: Failing to keep a proper lookout; failing to yield the right of way when the vehicle operated by plaintiff had entered the intersection before the vehicle operated by defendant had reached the north margin of the intersection; in failing to stop in obedience to a red signal light on the occasion of the wreck; and in driving his automobile at a greater rate of speed than a person of ordinary care would have maintained under the facts and circumstances then existing as defendant entered the intersection in question. The jury by its verdict also acquitted plaintiff of all charges of contributory negligence and also found that the collision was not an unavoidable accident.

Special Issues 4, 5, and 6 and the jury's answers thereto are quoted below:

'SPECIAL ISSUE NO. 4:

'What amount of money, if any, if paid now in cash do you find from a preponderance of the evidence will fairly and reasonably compensate the plaintiff W. G. Michaels for the injuries sustained by him on the occasion of the wreck?

'ANSWER BY STATING THE AMOUNT, IF ANY, IN DOLLARS AND CENTS.

'ANSWER: $17,500.00

'In arriving at you answer to the above question, you may take into consideration the following elements of damages, and none other: The loss of earnings, if any, that the plaintiff has suffered as a proximate result of his injuries from the date they were received to the present time; the loss of earnings and impairment of the plaintiff's capacity to work and earn money, if any, that in reasonable probability will be incurred by the plaintiff in the future as a proximate result of his injuries; the physical and mental pain and suffering, if any, that the plaintiff has undergone as a proximate result of his injuries from the date he was injured to the present; and the mental and physical pain and suffering, if any, you may find that the plaintiff will in reasonable probability suffer in the future as a proximate result of his injuries. And you will make your answer to the foregoing issue such a sum of money, if any, as will reasonably and fairly compensate the plaintiff for the above elements of damages and none other.

'SPECIAL ISSUE NO. 5:

'What amount of money, if any, do you find from a preponderance of the evidence will fairly compensate the plaintiff W. G. Michaels for medical, hospital, x-ray, laboratory and drug expense, if any, necessarily incurred in the treatment of W. G. Michaels by reason of his injuries?

'ANSWER BY STATING THE AMOUNT, IF ANY.

'ANSWER: $272.48

'SPECIAL ISSUE NO. 6:

'From a preponderance of the evidence what do you find was the reasonable cost in Harrison County, Texas and vicinity of the necessary repairs to the truck being driven by W. G. Michaels immediately following the collision in question, directly caused by said collision?

'ANSWER BY STATING THE AMOUNT.

'ANSWER: $700.00.'

The trial court entered judgment for plaintiff upon the verdict of the jury for the amount of damages found by the jury. Defendant has appealed.

Appellant, among other things, contends that there is no evidence of probative force to support the jury's answer to special issue No. 4, that the evidence is insufficient to support said answer, and that the finding of the jury on special issue 4 is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

For a comprehensive discussion of the principles of law applicable to the determination of such character of points see Chief Justice Calvert's article, "No Evidence' and 'Insufficient Evidence' Points of Error', 38 Tex.Law Rev., No. 4, p. 361.

Appellant also contends that the amount awarded by the jury ($17,500.00) in response to issue 4 is excessive.

Plaintiff was 63 years old at the time of the collision and had a life expectancy of 14.14 years. Plaintiff's pleading sought damages for personal injuries in excess of $35,000.00; among the elements of damages stated in plaintiff's petition was a claim for damages in the amount of $7,000.00 for past and future pain and suffering, both physical and mental. Appellee's version of the facts relative to the personal injury damages of plaintiff are set out in appellee's brief, and with only slight amendments to remove references to the record, is quoted in part as found below. ¹

Recovery may be had for future physical pain and suffering if the evidence shows that there is a reasonable probability of such consequences. 13 Tex.Jur. p. 474, Sec. 274; Galveston, H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S.W. 491; St. Louis Southwestern Ry. Co. of Texas v. Garber, Tex.Civ.App., 108 S.W. 742; Gulf, C. & S. F. Ry. Co. v. Harriett, 80 Tex. 73, 15 S.W. 556; Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522.

In Turner v. McKinney, Tex.Civ.App., 182 S.W. 431, 435, wr. ref., after setting out the facts in that particular case, it was held: 'We think the evidence above quoted sufficiently shows physical pain and mental suffering up to the time of the trial, and that the plaintiff will probably suffer mental anguish and physical pain in the future. Mental suffering will be implied from illness, or injuries, accompanied by physical pain (citing authorities).'

It was held in Dallas Railway & Terminal Co. v. Davis, Tex.Civ.App., 26 S.W.2d 340, no writ, that mental and physical pain will be implied with continued illness.

There was amply sufficient evidence of probative force in the record to support an award of $7,000.00 for past and future pain and suffering of plaintiff as a result of the injuries he received in the collision, which amount of $7,000.00 was the amount sought by plaintiff in his petition for pain and suffering, past and future.

In Dallas Consolidated Electric St. Ry. Co. v. Motwiller, 101 Tex. 515, 519, 109 S.W. 918, 921, it is stated:

'The question being whether or not there was any evidence authorizing the submission of the element of damage from impairment of capacity to earn money, its decision must depend upon the evidence in the case in which the charge is given, and if there be anything in the evidence upon which the allowance of any sum, however small, can properly be made for such damage, the objection to the charge is met. * * * The law only exacts the kind of proof of which the fact to be proved is susceptible, but it does exact that. * * *

'It appears that before she was hurt she could and did walk to and from her work, and that since her injuries she has been compelled to ride upon street cars. From their own general knowledge and experience the jury could say that this diminished to some extent the returns from her employment, and we think this evidence was as definite as should be required to show loss of earning power to the extent indicated by it. Evidence is adduced to put the jury in possession of facts from which they can determine the extent of impairment of earning power, and it is not intended in itself to establish a fixed measure of damages. When the jury are informed of such a fact as that just stated, they have enough to enable them to allow something upon that score.' (Emphasis added)

In H. J. Heinz Co. v. Ashley, Tex.Civ.App., 291 S.W.2d 427, 431, no writ, it is stated:

'* * * However, it is settled law that where plaintiff is seeking to recover for impairment of his earning capacity, 'a very exact computation or assessment of the sum to be allowed in any particular case is doubtless impossible, and hence the determination of the amount is deemed to be peculiarly within the discretion of the trier of facts. However, a verdict must be, not a mere conjecture, but an intelligent judgment, based upon proof of circumstances from which a conclusion is to be drawn.' 13 Tex.Jur. 193-194, paragraph 93.

'In McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712, it was held that in a suit to recover for decreased earning capacity in the future, 'the amount which the plaintiff might have earned in the future is always uncertain, and must be left largely to the sound judgment and discretion of the jury. However, the verdict must be based on something more than mere conjecture. It must be an intelligent judgment, based upon such facts as are available.'

'In the same case the court held that where plaintiff is employed at a fixed wage or salary, the amount of his previous earnings ordinarily must be shown, and, 'If plaintiff's earning capacity is not totally destroyed, but only impaired, the extent of his loss can best be shown by comparing his actual earnings before and after his injury.' * * *'

We hold that there was evidence of probative force to support the jury's finding to special issue No. 4, and that the evidence was amply sufficient to sustain such finding.

After reviewing the entire record in this cause in the light of the rules enunciated in the case of In Re: King's Estate, 150 Tex. 662, 244 S.W.2d 660, we hold that the finding of the jury in response to issue No. 4 is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

We further hold that the jury's award of $17,500.00 for personal injuries (Issue No. 4) to plaintiff was not excessive...