Byrd v. Central Freight Lines, Inc.

• Decision Date: 30 June 1998
• Docket Number: No. 07-96-0311-CV,07-96-0311-CV
• Citation: 976 S.W.2d 257
• Parties: Stephen Bradley BYRD, Appellant, v. CENTRAL FREIGHT LINES, INC., Appellee.
• Court: Texas Court of Appeals

Page 257

976 S.W.2d 257

Stephen Bradley BYRD, Appellant, v. CENTRAL FREIGHT LINES, INC., Appellee.

No. 07-96-0311-CV.

Court of Appeals of Texas Amarillo.

June 30, 1998.

David Lanehart, Lubbock, for appellant.

Jones Flygare Galey Brown & Wharton, James L. Wharton, G. Douglas Welch, Lubbock, Cowles & Thompson, P.C., Julia F. Pendrey, Dallas, for appellee.

Before BOYD, C.J., and DODSON and REAVIS JJ.

DODSON, Justice.

Stephen Bradley Byrd (Byrd), appellant, challenges a take nothing judgment rendered for him in his personal injury suit against his employer Central Freight Lines, Inc. (Central). Central did not have workers' compensation insurance at the time of the incident. By two points of error, Byrd complains that the jury's findings on damages were factually insufficient and that the trial court erred in submitting questions on Byrd's comparative liability. We affirm.

On November 5, 1992, Stephen Bradley Byrd was allegedly struck by a forklift operated by a co-worker, Dwayne Williams. Both men were employed by Central Freight Lines. Williams was backing the forklift out of a tractor-trailer when he allegedly clipped Byrd's heel. At the time, Central was not a subscriber to workers' compensation insurance. However, Central placed Byrd in its own program for work injuries, paying for his medical expenses for three years. Central also paid Byrd six months of full pay, six months of pay at 85%, and two years of half pay. Byrd did not return to work and he ultimately filed suit against Central for negligence. He alleged injuries to his knee and ankle, physical and mental pain, suffering and anguish, physical impairment, loss of future earning capacity, and medical expenses.

Trial was held on May 21, 1996. The trial court submitted a jury charge which asked the jury whether Central was negligent whether Byrd was negligent, and then to apportion the parties' respective fault. The jury allocated 50% negligence to Byrd, and 50% to Central. They awarded $30,000.00 for future medical care, and $20,000.00 for loss of future earning capacity. Finally, the jury answered "0" in the charge blanks on damages for past and future physical impairment, physical pain and mental anguish, and disfigurement. On June 6, 1996, Byrd moved the trial court to accept the verdict. On June 12, 1996, the trial court rendered a take nothing judgment for Byrd, after offsetting credits of $104,698.85. The court denied Byrd's motion for new trial.

By his first point of error, Byrd complains that the jury's award on damages was factually insufficient. He contends that the failure of the jury to find an amount in damages for past and future physical impairment, physical pain and mental anguish, and disfigurement was contrary to the overwhelming weight and preponderance of the evidence so as to be manifestly unjust. We conclude that Byrd waived this point of error in moving to accept the jury's verdict.

In urging that Byrd waived error on this matter, Central points out that Byrd did not move to disregard the jury's verdict, nor raise a legal sufficiency point of error. Additionally, the Texas Supreme Court has recognized the proposition that a party cannot take inconsistent positions at trial and on appeal. By moving the trial court to render judgment on the verdict, a party is prohibited from taking a position inconsistent with the verdict on appeal. Litton Indus. Products, Inc. v. Gammage, 668 S.W.2d 319, 322 (Tex.1984). However, if a party moves to accept judgment but reserves the right to complain, the Supreme Court has held that error is preserved. First National Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex.1989) (motion for judgment contained statement that plaintiff agreed only as to the form of the judgment but disagreed with the content and result).

Byrd's motion for judgment on the verdict requested the trial court render judgment "in accordance with the jury verdict" and that "Plaintiff have judgment against Defendant ... for damages of $50,000.00 plus interest as provided by law." The proposed judgment attached to his motion reflected this request. In fact, the only difference between Byrd's proposed judgment and the one rendered by the court is that Byrd's did not reflect the undisputed credits and offsets. Now, Byrd is challenging the jury's damage findings contrary to the position he took when he asked the trial court to enter judgment on those findings. There was no reservation of any complaint in Byrd's motion. Byrd did not move to accept only the form of the judgment or only that part that he found acceptable in accordance with Fojtik. His motion simply...