Golden Eagle Archery, Inc. v. Jackson

Decision Date11 September 2003
Docket NumberNo. 01-0007.,01-0007.
Citation116 S.W.3d 757
CourtTexas Supreme Court

Jacqueline M. Stroh, Crofts & Callaway, P.C., San Antonio, Lipscomb Norvell, Jr., Benckenstein Norvell & Nathan, Beaumont, for petitioner.

John Cash Smith, Bush, Lewis & Roebuck, George Barron, Orange, David W. Holman, Holman & keeling, P.C., Houston, for respondent.

Justice OWEN delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice SMITH, and Justice WAINWRIGHT joined.

In this case, we resolve how courts of appeals are to conduct a factual sufficiency review when 1) a jury is permitted to award damages for elements that somewhat overlap, 2) the jury is instructed not to duplicate an award for any particular loss, and 3) the jury awards no damages or damages that are allegedly inadequate for an element that could overlap with another.

Because the court of appeals in this case did not properly apply the standard of review set forth in Pool v. Ford Motor Co.,1 and because this Court has never before articulated the standard for factual sufficiency review when evidence pertains to more than one category of damages, we reverse the court of appeals' judgment2 and remand this case to that court for another factual sufficiency review.


This is the second time that this case has been before our Court. In our prior decision,3 we considered alleged juror misconduct and whether Texas Rule of Civil Procedure 327(b) and Texas Rule of Evidence 606(b), limiting proof of juror misconduct, are constitutional. We held that there was no competent evidence of juror misconduct and that Rules 327(b) and 606(b) neither deprive litigants of a fair trial under the Texas Constitution nor fail to afford litigants due process.4 We remanded the case to the court of appeals to consider issues it had not reached.5 On remand, the court of appeals held that the jury's failure to award any damages for a category of physical impairment was so against the great weight and preponderance of the evidence that the zero damages award was manifestly unjust and required a new trial.6 Our focus is on that issue.

Ronald Jackson received a compound hunting bow manufactured by Golden Eagle Archery as a gift from his wife. When she presented it to him, he attempted to demonstrate how it is used. The bow went out of control, and the metal rod that separated the bow string from the cables struck Jackson in the eye. He bled profusely, required emergency treatment at one hospital, was transferred to another hospital for additional treatment, and spent ten days there. He suffered broken bones around the orbit of his eye, some loss of vision, a ruptured sinus, and a broken nose. Upon discharge he was instructed to limit activities to avoid straining or lifting. About a month later, he underwent surgery to repair the orbital fractures and other reconstructive surgery and was hospitalized an additional three days. Jackson was unable to work for about two months after the date of the accident with the bow. He returned to work thereafter, but has some permanent impairment to his eye and vision, and some disfigurement.

Jackson sued Golden Eagle, alleging that the bow was defectively designed and marketed. The jury failed to find a design defect, but found that Golden Eagle did not give adequate warnings of the product's danger. A single damage question was submitted in which the jury was permitted to award damages in six separate categories. They awarded $25,393.10 for medical care, $2,500 for physical pain and mental anguish, $2,500 for "physical impairment of loss of vision," $0 for "physical impairment other than the loss of vision," $1,500 for disfigurement, and $4,600 for loss of earnings in the past.

The trial court rendered judgment on the verdict in favor of Jackson, and Jackson appealed. As we have already described above, the court of appeals reversed the trial court's judgment after concluding that two of our rules of procedure were unconstitutional. We reversed the court of appeals and remanded other, unresolved issues to that court. Following that remand, the court of appeals considered Jackson's contention that he was entitled to a new trial because the jury's failure to award any damages for "physical impairment other than loss of vision" was against the great weight and preponderance of the evidence. Jackson also contended that the jury's awards for physical pain and mental anguish, physical impairment because of loss of vision, and disfigurement were inadequate and required a new trial. The court of appeals agreed with Jackson regarding the award of no damages for physical impairment other than loss of vision. It remanded the case for a new trial and therefore did not reach Jackson's other issues on appeal.

Golden Eagle filed a petition for review in our Court. We granted that petition to consider the proper standard to be applied in conducting a factual sufficiency review of a jury's failure to award any damages for physical impairment.


Although this Court does not have jurisdiction to conduct a factual sufficiency review, we do have jurisdiction to determine whether a court of appeals has applied the correct standard in conducting a factual sufficiency review.7 It is a familiar principle that in conducting a factual sufficiency review, a court must not merely substitute its judgment for that of the jury.8 It is an equally familiar principle that the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony.9

We held in Pool v. Ford Motor Co. that in order for this Court to conduct a meaningful review of whether a court of appeals has correctly applied the factual sufficiency standard, courts of appeals "should, in their opinions, detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias."10 Pointedly, we added, "[f]urther, those courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. It is only in this way that we will be able to determine if the requirements of In re King's Estate have been satisfied."11 We held in In re King's Estate that a court of appeals must

consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust—this, regardless of whether the record contains some "evidence of probative force" in support of the verdict.... The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.12

Before a court can properly conduct a factual sufficiency review, it must first have a clear understanding of the evidence that is pertinent to its inquiry. The starting point generally is the charge and instructions to the jury. In this case the jury was instructed and answered as follows:

What sum of money, if paid now in cash, would fairly and reasonably compensate Ronald Jackson for his damages, if any, that resulted from the injury in question?

Consider the elements of damages listed below and none other. Consider each element separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you find.

Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Ronald Jackson.

Answer in dollars and cents for damages, if any, that were sustained in the past and that in reasonable probability will be sustained in the future, unless otherwise instructed.


                a. Medical care                                  $25,393.10
                b. Physical pain and mental anguish              $ 2,500.00
                c. Physical impairment of loss of
                vision                                           $ 2,500.00
                d. Physical impairment other than
                loss of vision                                   $     0
                e. Disfigurement                                 $ 1,500.00
                f. Loss of earnings in the past                  $ 4,600.00

The only definition that was given regarding this question was a definition of "injury" that said: "`Injury' means damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm." "Physical impairment" was not defined, nor were any of the other listed categories of damages.

Jackson does not challenge the jury's findings regarding medical care and loss of past earnings. The jury awarded the full amounts he requested in those categories. It is the non-economic damages that are at issue. The court of appeals addressed only the jury's failure to award damages for "Physical impairment other than loss of vision." The court of appeals concluded that the failure to award damages in this category was against the great weight and preponderance of the evidence because "Jackson sustained multiple fractures to his face; four of the seven bones that make up the orbit of the eye were fractured.... [H]e sustained a ruptured sinus and a broken nose.... [H]e remained [in the hospital] for ten days.... Thirty-seven days elapsed from...

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