Bittick v. Ward, 7086

Citation448 S.W.2d 174
Decision Date13 November 1969
Docket NumberNo. 7086,7086
PartiesLeon BITTICK, Appellant, v. David Clifton WARD, Appellee. . Beaumont
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Musslewhite, Maroney & Cely, Lufkin, for appellant.

Renfrow, Zeleskey, Cornelius, Rogers & Berry, Lufkin, for appellee .


This is an action for damages for personal injuries received in an automobile collision. Trial was by jury and judgment was rendered for plaintiff upon the special issues. The parties will be referred to here as they were in the trial court.

The jury found defendant negligent in not keeping a proper lookout, and that this was a proximate cause of the occurrence in question. These findings are not under attack. In response to the first damage issue covering doctor's services and drug expense, the jury gave this answer: '$500.00 five Hundred & no cents. This is all in this case now & futcher (Expence) (sic).' The jury then answered 'none' to the second damage issue on future medical expenses, as well as to the third damage issue covering general damages, including pain and suffering.

Plaintiff's first point of error is that there is no evidence to support the answer of 'none' to the third damage issue mentioned above. Plaintiff's second and third points of error are that there is insufficient evidence to support such finding, and that such finding is contrary to the great weight and preponderance of the evidence. If any of these points is sustained, the case would have to be reversed and remanded, rather than rendered, inasmuch as we would not be permitted under the law to furnish an amount for such damages, and thereby substitute our finding for that of the jury.

We have made a careful study of the entire record, and have concluded that the undisputed evidence shows plaintiff had sustained physical pain and mental suffering and that her ability to perform her household work had been impaired. There was no evidence to support the answer 'none' to the third damage issue. The only witnesses who gave testimony as to the state of plaintiff's health were the plaintiff, the plaintiff's husband, and Dr. H. A. Hooks. The hospital record was also offered in evidence.

Plaintiff gave the following testimony: She was 41 years of age at the time of the collision made the basis of this suit. She was a passenger in the rear seat of an automobile which was standing still at the time it was struck by an automobile driven by defendant. That defendant's car struck the car in which plaintiff was riding in the rear end with such force that the impact knocked the breath out of her. The sudden motion caused her to go forward and then jerk back when she struck her back on the arm rest. A violent neck pain and headache hit her immediately. Her husband carried her to the hospital. That she had never had any trouble with her neck or back before this collision. At the time of trial, over a year later, she complained of still having pain in her neck, head and back. She had the pain all of the time, but it is worse when she does household work. She has not been able to do heavy cleaning, heavy lifting, or mow the lawn since the collision, all of which she had done before. She no longer sleeps well at night, can't sit long, and is now irritable.

Plaintiff's husband testified: They had been married for 27 years, and his wife had done all of her housework before this accident. He was also a passenger in the automobile which was struck by defendant a severe blow. After the collision, his wife complained of pain in her neck, head and back. He carried his wife from the scene of the collision to the emergency room of the hospital where she was treated. His wife has made the same complaints since the collision, plus that of numbness in the arm. Her pain is growing worse. She is more nervous and more irritable since the collision, and cannot do the heavy housework she used to do.

The hospital record was offered in evidence showing that plaintiff was brought in after the collision and examined and treated by Dr. G . Hardy Rudd. Such report showed that doctor gave as his diagnosis, contusion of the right lower chest, posteriorly, which meant a bruise to the lower part of her back.

Defendant gave the following testimony: He was driving along between 30 and 35 miles per hour. He saw the light was green at a point about half a block from an intersection and noticed there was a car about 75 feet ahead of him. A passenger in his car said, 'Here's the map,' and defendant looked at it. As he looked down, he took his foot of the gas and his car slowed down to about 25 or 30 miles per hour. He looked up from the map and the car in front of him was stopped 15 or 20 feet ahead. He applied his brakes, but they did not hold and collided with the car in which plaintiff was a passenger. The impact of the collision bent the hood and 'busted' the radiator of defendant's car. The car in which plaintiff was riding had the rear end dented in so that the trunk could not be opened and required expensive repairs. The impact was so severe the windshield of defendant's car was broken when struck by his passenger's head.

Dr. H. A. Hooks gave this testimony: Plaintiff came to see him August 21, 1967, and gave him a history similar to the one described in plaintiff's testimony. She complained on pain in the neck and back and headaches. Plaintiff had a whiplash type of injury. He found muscle spasm in the cervical spine area which he diagnosed as acute cervical strain. He prescribed neck exercises and medicine which included muscle relaxants. A new diagnostic instrument called a medcosonolator was used with which he was able to detect pain and muscle spasm. He saw plaintiff again September 13, 1967, and she had the same complaints as the first visit. When he saw plaintiff October 9, 1967, she complained of numbness in her right arm which indicated nerve root involvement. He saw plaintiff November 11, 1967, and had x-rays taken that showed a straightening of the cervical curve, which was caused by the muscle spasm. He saw plaintiff again October 27, 1968. His final diagnosis was cervical neuropathy which means a disease or injury to the nerve root. In his opinion, based upon the history, his observation and findings, plaintiff's condition in all reasonable probability was caused by the accident made the basis of this suit. The condition of plaintiff he found was calculated to cause physical pain and mental anguish. Plaintiff had not improved since he first saw her, and a minor injury to the nerve root would have been expected to improve by now. Plaintiff has sustained a servere neck injury, the condition she has tends to get worse and most likely it is permanent.

This being all of the evidence in the record reflecting upon plaintiff's injuries and damages, the answer of the jury that plaintiff sustained no damages in response to the third damage issue not only has no support in the evidence, but is contrary to all of the evidence. Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954).

Defendant has a counter point that plaintiff's point of error as to the third damage issue should be disregarded because plaintiff had the...

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7 cases
  • Franco v. Graham
    • United States
    • Texas Court of Appeals
    • 17 Junio 1971
    ...795 (1954); Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ.App., Corpus Christi 1967, wr. ref. n.r.e.), and cases therein cited; Bittick v. Ward, 448 S.W.2d 174 (Tex.Civ.App., Beaumont 1969, wr. ref. n.r.e.); Taylor v. Dunn, 453 S.W.2d 521 (Tex .Civ.App., Waco 1970, We are not here presented wi......
  • Montandon v. Colehour
    • United States
    • Texas Court of Appeals
    • 11 Junio 1971
    ...Civ.App., 1966, no writ hist.); Coppedge v. Kreuz, 2 S.W.2d 362 (Austin Civ.App., 1928, no writ hist .); Bittick v. Ward, 448 S.W.2d 174 (Beaumont Civ.App., 1969, ref., n.r.e.); Gallegos v. Clegg, 417 S.W.2d 347 (Corpus Christi Civ.App., 1967, ref., n.r.e.); Edmondson v. Keller, 401 S.W.2d ......
  • Sansom v. Pizza Hut of East Texas, Inc.
    • United States
    • Texas Court of Appeals
    • 30 Abril 1981
    ...under the law to furnish an amount for damages and thereby substitute our finding for that of the jury. Bittick v. Ward, 448 S.W.2d 174 (Tex.Civ.App. Beaumont 1969, writ ref'd n. r. e.); see generally, O'Connor, Appealing Jury Findings, 12 Hou.L.Rev. 65 (1974). Therefore, appellant's second......
  • Carter v. Lee
    • United States
    • Texas Court of Appeals
    • 21 Noviembre 1973
    ...Wanda Petroleum Company v. Reeves, 385 S.W.2d 688 (Tex.Civ.App., Waco, 1964, error ref. n.r.e.), and Bittick v. Ward, 448 S.W.2d 174 (Tex.Civ.App., Beaumont, 1969, error ref. n.r.e.). We have also come to the conclusion, as a separate and distinct ground upon which this reversal is based, t......
  • Request a trial to view additional results

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