Gant v. Dumas Glass and Mirror, Inc.
| Decision Date | 02 December 1996 |
| Docket Number | No. 07-96-0063-CV,07-96-0063-CV |
| Citation | 935 S.W.2d 202 |
| Parties | Todd GANT, Appellant, v. DUMAS GLASS AND MIRROR, INC. and Bobby Dee Banks, Appellees. |
| Court | Texas Court of Appeals |
Garner Lovell & Stein, P.C., Joe L. Lovell, Tim D. Newsom, Amarillo, for appellant.
Fulbright & Jaworski L.L.P., Ben Taylor, Dallas, for appellees.
Before BOYD, C.J., REAVIS, J., and REYNOLDS, Senior Justice. *
Todd Gant, being dissatisfied with the recovery secured from Bobby Dee Banks for his personal injuries in his automobile-collision negligence action against Dumas Glass and Mirror, Inc. (Dumas Glass) and its employee, Banks, has pursued this appeal with seven points of error. He contends there was error in the jury selection, the jury's ultimate award of damages, and in the trial court's instructing a verdict for Dumas Glass, as well as in rendering judgment for Dumas Glass notwithstanding the jury finding that Banks was in the course and scope of his employment at the time of the collision. Concluding that reversal is not warranted by Gant's points-of-error contentions, we will affirm.
The underlying action arose when a pickup truck owned by Dumas Glass and driven by Banks collided with the rear end of an intersection-stopped automobile, which was operated by Gant and owned by his mother. By his live pleadings, Gant alleged that Banks was negligent in causing the collision, and was in the course and scope of his employment with Dumas Glass at the time of the collision. Pleading that the collision caused severe injuries to his back, Gant sought past and future damages for physical pain, mental anguish, medical expenses, lost wages, and diminished physical capacity from Dumas Glass and Banks, who generally denied Gant's allegations.
During the trial before a jury, the trial court granted the motion of Dumas Glass for an instructed verdict, but still submitted to the jury the question whether Banks was acting in the course and scope of his employment at the time of the collision. The jury found that Banks's negligence was the proximate cause of the collision and that, at the time, he was acting in the course and scope of his employment.
The jury made the following awards for Gant's damages:
Medical care in the past: $ 34,908.92
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Medical care in the future: $ 500.00
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Loss of earning capacity in the past: $ 4,250.00
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Loss of earning capacity in the future: $ 0
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Physical pain in the past: $ 3,900.00
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Physical pain in the future: $ 2,000.00
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Mental anguish in the past: $ 0
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Mental anguish in the future: $ 0
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Physical impairment in the past: $ 3,900.00
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Physical impairment in the future: $ 25,740.00
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The trial court accepted the verdict, granted the motion of Dumas Glass for judgment notwithstanding the jury's finding that Banks was acting in the course and scope of his employment, and rendered judgment decreeing Gant's recovery of damages from Banks in the sum of $75,198.92 for actual damages, pre-judgment interest thereon in the amount of $12,958.29, and post-judgment interest at a rate of 10% per annum and costs. 1 By its judgment, the court also decreed that two intervenors, St. Anthony's Hospital and High Plains Baptist Hospital, respectively recover the stipulated sums of $13,645.10 and $1,207.95 from Gant, who has not challenged the awards, and the hospitals are not parties to this appeal.
Initially, Gant charges the trial court with error in failing to grant his challenges for cause against veniremembers Hood, Bullington and Childers, whom he perceived to express bias or prejudice against awarding damages for mental anguish, and who, after his peremptory challenges were exhausted, served as jurors. 2 Additionally, Gant charges the court erred in failing to grant his challenge for cause against veniremember Saenz who, being unsuccessfully challenged because of his friendly relationship with Banks, also served as a juror. We will address the two grounds for challenges separately.
The premise for Gant's complaint against the denial of his challenges to the three jurors whom he contends were biased or prejudiced against awarding damages for mental anguish is found in the voir dire examination of the venire by Gant's counsel. The inquiries of counsel, following his mention of various damages, and the responses elicited, are recorded as follows:
[Counsel]: How about mental anguish? Is that too far afield for anybody?
[Veniremember] HOOD: Too close.
[Counsel]: How close? Just tell me why you say that.
HOOD: I am not real sure. I guess thinking about myself, if I were in that same situation. I think we all face problems and all kinds of things. Whether we should be paid for that, I just don't feel like we should. I think that is part of living.
[Counsel]: Could you give an award of mental anguish damages at all?
HOOD: I might have a problem with that.
[Counsel]: When you say--What kind of problem? I am trying to understand.
HOOD: Well, maybe I am trying to understand myself. It would have to be something that was clear-cut, black and white, in my estimation, before I did.
[Counsel]: I see you nodding your head kind of back there Darlene [Bullington].
[Veniremember] BULLINGTON: I have a problem with that.
[Counsel]: With mental anguish?
BULLINGTON: Yeah. You can get over anything if you want to.
[Counsel]: Could you award any mental anguish damages?
BULLINGTON: It would be hard. We all have mental anguish at times.
[Counsel]: What would it take--Just in your opinion what would be a situation that you could award mental anguish damages?
BULLINGTON: I can't think of any.
[Counsel]: Can you think of any situation where you could?
BULLINGTON: I just think you could get over anything if you want to.
Counsel then moved to questioning other veniremembers and, when he reached veniremember West, the following exchange occurred:
WEST: I would like to know what your definition of mental anguish is.
[Counsel]: The Court, at the end of the case, would give a definition. And you just asked me one of those questions lawyers just hate, because you put me on the spot, and I can't give you a precise legal definition without going and looking real quick. Or it might take me a little more than real quick.
[Counsel]: I believe that what the jury will find what the definition is, is pretty broad without much scale. And there are--Just being mad alone, I don't believe under the definition is enough. Just being upset alone is not enough. It has to be more than that. Beyond that there is no scale.
Given that--and I have got to work my way through--do you feel under a relatively vague definition like that that you could award mental anguish damages under any circumstance?
WEST: Well, if you have just--If it is being mad mentally, just because this has happened to you, you have got this problem, I think a person should be able to go on and get through it. But if you have developed mental problems because of it, it is a different thing.
No other definition of mental anguish was provided to the venire.
Continuing his examination, counsel engaged in the following dialogue with veniremember Childers:
[Counsel]: Ms. Childers, I haven't picked on you yet. Could you award mental anguish damages?
CHILDERS: I don't believe I could.
After Gant's counsel finished his voir dire examination, counsel for the hospitals also questioned the veniremembers on the subject of mental anguish, during which these excerpts are recorded:
[Hospitals' Counsel]: But what I am asking about is, based on the evidence here--not outside this room, but here--and based on the Court's instructions to consider mental anguish, some of you won't.
* * * * * *
[Counsel]: Ms. Bullington, you won't, will you?
BULLINGTON: If I hear all of it.
[Counsel]: You might?
BULLINGTON: I might.
* * * * * *
[Counsel]: Sergeant Hood, be honest with me. Mental anguish, would you even consider it under the scenario I have laid out?
HOOD: Yes, I would consider it. I said earlier I would have a real problem.
[Counsel]: You would have a real problem, but you would consider it.
Anybody that would just not consider it?
(No audible response.)
Based on this exchange, Gant charges the court erred in overruling his challenges because the bias or prejudice evinced itself in the jury's award of zero dollars for past and future mental anguish.
Section 62.105 of the Texas Government Code Annotated (Vernon Supp.1997) specifies the grounds for disqualification of a person from serving as juror as a matter of law. As material to Gant's challenges, subsection (4) provides for disqualification of a person who has a "bias or prejudice in favor of or against a party in the case," and has been held to include bias or prejudice against the subject matter of the litigation. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963). But, when a juror is not found biased or prejudiced as a matter of law, the question whether the juror is nevertheless sufficiently biased or prejudiced to merit disqualification is a factual determination to be made by the trial court. Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex.1963).
The trial court's overruling a challenge for cause carries with it an implied finding that bias or prejudice does not exist such that it constitutes disqualification. Thus, whenever the evidence does not conclusively establish the panelist's disqualification as a matter of law, we must consider all the evidence in the light most favorable to upholding the trial court's ruling, Bullard v. Universal Underwriters Insurance Co., 609 S.W.2d...
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