Elliott v. Dow

• Decision Date: 31 October 1991
• Docket Number: No. B14-90-00866-CV,B14-90-00866-CV
• Citation: 818 S.W.2d 222
• Parties: Roy ELLIOTT, Appellant, v. Earl DOW, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 222

818 S.W.2d 222

Roy ELLIOTT, Appellant, v. Earl DOW, Appellee.

No. B14-90-00866-CV.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 31, 1991.

Rehearing Denied Nov. 27, 1991.

Sanford B. Kahn, Houston, for appellant.

W. Scott Goleman, Conroe, Gregg Anderson, Houston, for appellee.

Before PAUL PRESSLER, JUNELL and ELLIS, JJ.

OPINION

ELLIS, Justice.

This is an appeal from a judgment awarding damages for personal injuries sustained as a result of an auto/motorcycle collision. The jury found that both parties' negligence proximately caused the occurrence (appellant: 35%, appellee: 65%). The jury awarded appellant $2,500.00 for physical pain, $2,000.00 for lost wages and $10,000.00 for medical bills. The jury determined these amounts from the date of the incident until the date of the verdict. The jury awarded $0 for appellant's mental anguish. The trial court entered judgment on appellee's motion in favor of appellant in the amount of $9,425.00 plus pre-judgment and post-judgment interest. From this judgment appellant appeals.

On August 6, 1985, appellant was travelling by motorcycle southbound on Montrose, a major four lane thoroughfare. Appellee's car failed to yield the right of way at the intersection where appellant's motorcycle was approaching. Appellant responded by veering to the right toward appellee's vehicle, and as a result, appellant's motorcycle hit appellee's car. Appellant testified the speed of his motorcycle at impact was 10 miles an hour. He also testified that if he had gone left he would likely have missed the appellee.

Immediately after the accident, appellant noticed his arm was cut and his left ankle hurt a bit. Appellant was taken to a hospital emergency room and his arm was stitched. A couple of days later, appellant visited Dr. Shafie because his leg was sore. Later, upon returning from a trip to Europe, he experienced lower back pains and went back to Dr. Shafie who admitted him for 10 days in the hospital followed by outpatient physical therapy. Subsequently, appellant visited a different doctor, Dr. Mitchell, who put him in a brace for his back, and he saw Dr. Mitchell four or five times, until some time in 1988.

In October of 1988, appellant was involved in a subsequent automobile accident in which appellant's car was rear-ended. He experienced back pain as a result of that accident. Appellant could not say what back pain at that point was caused by the motorcycle wreck and what back pain was caused by the automobile wreck in October of 1988.

In point of error one, appellant contends the trial court erred in entering judgment on the jury's finding of zero damages for mental anguish, because it was so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust. In reviewing great weight points complaining of a jury's failure to find a fact, courts of appeals must weigh all of the evidence and should set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (citing Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); In Re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951)). The jury is the trier of facts and is the sole judge of the credibility and weight that should be given to their testimony. Bolin Development Corp. v. Indart, 803 S.W.2d 817 (Tex.App. [14th Dist.] 1991, writ den.) (citing Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). The appellate court is not free to substitute its opinion for that of the jury merely because it might have reached a different conclusion. Id. (citing Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988)).

Appellant contends that the law "clearly states" that a jury may not refuse to award mental anguish damages when the jury has found an injury did occur and awarded money for past pain, lost earnings and medical expenses. Appellant cites two cases in support of this proposition: Del Carmen Alacorn v. Circe, 704 S.W.2d 520 (Tex.App.--Corpus Christi 1986, no writ) and Sansom v. Pizza Hut of East Texas, Inc., 617 S.W.2d 288 (Tex.Civ.App.--Tyler 1981, no writ). We fail to see how these cases support appellant's proposition.

The juries in Del Carmen Alacorn and Sansom did not award damages for physical pain suffered by the appellant, unlike the present case. In Del Carmen Alacorn, the jury found that the appellant had suffered an objective injury for which she was awarded damages for her medical bills and loss of earnings. In response to the appellant's complaint of the jury's failure to award damages for physical pain and mental anguish, the court stated that "We find it inconsistent that appellant could require the medical care for which the jury compensated her, and yet find no compensable physical pain or mental anguish." Del Carmen Alacorn v. Circe, 704 S.W.2d 520, 521 (Tex.App.--Corpus Christi 1986, no writ) (emphasis added). Unlike Del Carmen Alacorn, the jury in the present case did award damages for pain suffered by the appellant. We, therefore, do not find it inconsistent based on Del Carmen Alacorn for the jury in the present case to find only past physical pain rather than mental anguish.

Also, in Sansom, once again unlike the present case, the jury did not award damages for past pain and suffering, although the jury found appellant did suffer injury and awarded damages for loss of appellant's household services and past medical expenses. Like Del Carmen Alacorn, the court reviewed the jury's failure to award damages for past pain and suffering and mental anguish; however, Sansom holds the jury's answer of zero damages for "pain and suffering and mental anguish is so against the great weight and preponderance of the evidence as to be manifestly unjust because the uncontroverted evidence discloses that appellant did suffer some damages." Sansom v. Pizza Hut of East Texas, Inc., 617 S.W.2d 288, 293 (Tex.App.--Tyler 1981, no writ) (emphasis added). Although the court indicates that pain and suffering and mental anguish should be awarded once a jury finds an injury, the court analyzed this case in light of sufficient "uncontroverted evidence" in support of these elements of damages. Id. at 290-2 (Sansom appeared visibly in pain after injury and shortly thereafter; had trouble climbing stairs, getting up and down and walking any distance; was in bed for several weeks, used crutches out of necessity, had lessened sensation on the lateral sole of foot).

Appellant argues there was uncontroverted...