City of Houston v. Fondren

• Decision Date: 07 November 1946
• Docket Number: No. 11822.,11822.
• Citation: 198 S.W.2d 480
• Parties: CITY OF HOUSTON v. FONDREN et ux.
• Court: Texas Court of Appeals

198 S.W.2d 480

CITY OF HOUSTON v. FONDREN et ux.

No. 11822.

Court of Civil Appeals of Texas. Galveston.

November 7, 1946.

Supplemental Opinion December 5, 1946.

Rehearing Denied January 9, 1947.

Appeal from District Court, Harris County; William M. Holland, Judge.

Suit by Cleon E. Fondren and his wife against the City of Houston to recover for injuries sustained in an automobile collision. From a judgment for plaintiffs, defendant appeals.

Reformed and affirmed.

Lewis W. Cutrer, City Atty., and George Eddy, First Asst. City Atty., both of Houston, for appellant.

Allen, Smith & Neal and Geo. D. Neal, all of Houston, for appellees.

GRAVES, Justice.

This appeal is from a $17,000.00-judgment in favor of the appellee, Cleon E. Fondren, entered by the 127th District Court of Harris County, in response to a jury's verdict on special issues to the effect that the appellee had sustained damages in that sum, as the result of the negligence of the appellant-city's employee in causing a collision between one of its trucks and the automobile of the appellee, which at the time was being driven by himself.

In this court, while it splits them into several more, the appellant City urges but two controlling points of error, for a reversal:

The first one being to this effect:

That the jury's award of $17,000.00 to the appellee as compensation for his injuries so received was so unreasonably excessive in amount as to shock the judicial conscience, and to furnish unmistakable indication that it was the result of passion, prejudice, or some other improper motive, rather than of a due consideration of the evidence before the jury; especially so, when the appellee's single injury was undisputedly shown to have been a very minor one—at most a chip fracture of the outer rim of his right acetabulum, or the cup of his right hip Subsidiarily, that appellee's protestations of pain and suffering, along with his claim of physical disability, all asserted to have resulted to him directly from such inconsequential injury, were unsupported by the evidence, and could not be accounted for.

The second one is: The court abused its discretion in overruling appellant's motion for a new trial; in that, the jury was shown to have been guilty of such misconduct during its consideration of the cause as vitiated the verdict so returned by it, to the prejudice of appellant, in each and all of these respects, to-wit: In first determining to find in favor of plaintiff, and then proceeding to answer the issues in such manner as to arrive at that end; in arriving at the amount of damages to be awarded to Cleon E. Fondren by a "quotient" verdict; in mentioning and discussing the question of what the appellee's attorneys' fees in the case would probably be. Attached to the motion were affidavits from three jurors, purporting on the face thereof to substantiate the averments of misconduct.

After careful review of the record, together with the statement of facts, this member of the court is unable to see eye-to-eye with the appellant in its contention that the $17,000.00-verdict in this cause was excessive; on the contrary, that award fails to shock his judicial conscience when he contemplates the whole body of the evidence reflecting the character of the injury inflicted upon the appellee, the intrinsic nature of it, and the condition he was shown to have lingered in as a direct result of it—up until the conclusion of this trial in the court below.

In the first place, the negligent collision the City's truck inflicted upon the appellee was a severe one—it threw him entirely clear of the car in a hard fall, rendering him unconscious, and a fit subject for a hospital, where he was at once taken; it demolished his automobile to the extent that as a result thereof it was afterward sold for junk.

It resulted in the appellee's never having regularly worked any (although he did meanwhile earn a pittance of $25.00 repairing radios) from the time of the accident on the 29th day of March, 1945, until that of this trial below, on the 15th day of March, 1946. By the testimony of four of the doctors who examined and treated his injuries, it inflicted upon him a fracture of the right hip, which had not healed in the 11-½ months intervening between the time of the collision and the time of the trial, when the doctors so testified; in the further testimony of all such doctors but one, it was the consensus of opinion between them that such fracture was a permanent one, and would never heal; it was the further opinion of all the doctors that, having been such a fracture, it was sufficient to, and did, injure the surrounding tissues of the man's body to a decided extent, and all of them, except one, were also of the opinion that it accounted for all the pain and suffering which the appellee complained of as being very severe throughout the period from the date of the accident to the close of the trial.

From the evidence as a whole—since the jury was not limited to that from medical men alone—it seems to this member clear that it had a right to make at least these major findings: (1) That Cleon E. Fondren had been so seriously injured, and that his injury would go through the remainder of his natural life; (2) since, for about the nine years next before his injury, he had been making an average of over $200.00 a month, that he would probably have made materially more than that in the future—that his earnings would likely have increased as he got older; (3) that he probably would have lived for the 36-¾ years' life-expectancy the mortality tables gave him; (4) that his injuries would reasonably diminish his earning capacity by at least 20 per cent, or something like $700.00 per year.

In addition to the facts so shown, the record not only discloses testimony from which the jury might properly have found, as indicated, that the appellee would probably have to spend the remainder of his life in such crippled condition, but it is wholly without any evidence of any probative force even tending to show that any member of the jury returning the verdict had acted in response to any passion, or prejudice, or other improper motive, rather than in compliance with the oath he took to render his verdict upon the law and the evidence only.

These authorities deal with analogous, or at least, closely kindred states of fact, and are thought by him to support the trial court's action in entering the judgment it did: City of Harlingen v. Scroggins, Tex.Civ.App., 121 S.W.2d 408, 409, writ dismissed; Galveston, etc., v. Stevens, Tex.Civ.App., 94 S.W. 395, writ denied; Houston, etc., v. Batchler, 32 Tex.Civ.App. 116, 83 S.W. 902, 907, writ refused; International-G. N. R. Co. v. Hawthorne, 131 Tex. 622, 116 S.W.2d 1056, certiorari denied 306 U.S. 639, 59 S.Ct. 487, 83 L.Ed. 1040; Id., Tex.Civ.App., 90 S.W.2d 898; Long v. Metcalf, Tex.Civ.App., 134 S.W. 2d 485; McIver v. Gloria, 140 Tex. 566, 168 S.W.2d 710; Pure Oil Co. v. Crabb, Tex.Civ.App., 151 S.W.2d 962, writ refused; Texarkana, etc., v. Toliver, 37 Tex. Civ.App. 437, 84 S.W. 375, writ refused; Texas & N. O. Ry. Co. v. McGinnis, Tex. Civ.App., 81 S.W.2d 200, affirmed 130 Tex. 338, 109 S.W.2d 160; Texas & N. O. Ry. Co. v. Rittimann, Tex.Civ.App., 87 S.W.2d 745, writ dismissed.

Neither can the refusal of a new trial to appellant be held to have been reversible.

The trial...