Greyhound Lines, Inc. v. Craig

• Decision Date: 05 June 1968
• Docket Number: No. 103,103
• Citation: 430 S.W.2d 573
• Parties: GREYHOUND LINES, INC., Appellant, v. Mrs. Ray A. CRAIG et al., Appellees. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 573

430 S.W.2d 573

GREYHOUND LINES, INC., Appellant, v. Mrs. Ray A. CRAIG et al., Appellees.

No. 103.

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

June 5, 1968.

Rehearing Denied July 3, 1968.

George H. Kolb, John G. Tucker, Orgain, Bell & Tucker, Beaumont, for appellant.

W. James Kronzer, Curtiss Brown, W. W. Watkins, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellees.

BARRON, Justice.

This is a consolidated suit for personal injuries filed by Aaron Leger, Carolyn Sue synott, Mrs. Ray A. Craig, Henry W. Edwards and wife, Doris E. Edwards, John T. Guy and wife, Elaine Guy, against Greyhound Lines, Inc., and All Woods, Ltd., and its partners. After a trial with a jury based upon favorable findings for plaintiffs, the trial court rendered judgment against Greyhound Lines, Inc. for the following amounts: Aaron Leger, $525,000.00; Miss Synott, $25,000.00; Mr. and Mrs. Craig, $25,000.00; Mr. and Mrs. Edwards, $55,500.00; John T. Guy and wife, $32,400.00. The court ordered that All Woods, Ltd., and its partners, be absolved of any liability and denied the claims as between the defendants for contribution and indemnity.

On motion for new trial the trial court ordered a remittitur of $175,000.00 in regard to the recovery of Aaron Leger, reducing the recovery to $350,000.00. The trial court also ordered a remittitur of $10,000.00 on the recovery of Henry W. Edwards, and reduced the amount of the recovery of Mr. and Mrs. Edwards to $45,500.00. Remittiturs were ordered by the trial court under protest in accordance with Rule 315, Texas Rules of Civil Procedure.

This appeal is by Greyhound Lines, Inc. as appellant. The above named plaintiffs are appellees.

The case was brought as the result of a bus-truck accident occurring on August 27, 1965, between an east-bound Greyhound bus and a west-bound truck owned and operated by All Woods, Ltd. Plaintiffs were passengers on the Greyhound bus. The bus and the truck collided head-on on U. S. Highway 90 a short distance west of Vinton, Louisiana. The impact was severe, and the driver of the truck was fatally injured. Many passengers on the bus were severely injured, some of them fatally. The accident may be termed severe and horrible, and the injuries resulting were generally extensive and serious.

Liability of the appellant, Greyhound Lines, Inc., is not questioned in this appeal. Appellant assigns 29 points of error. The first three points of error complain that the trial court erred in instructing the jury that it could consider 'diminished capacity to work and labor' from the date of the accident to the date of trial, included in damage issues numbers 29, 33 and 35 concerning Mr . Leger, Mr. Edwards and Mr. Guy. Appellant contends that the court should have inquired only as to actual loss of time or earnings from the date of the accident until the date of trial. This subject has been debated extensively and has resulted in some confusion to trial and appellate courts in Texas. It is true that the amount of earnings lost in the past or that will probably be lost in the future are evidentiary of diminished earning power, and such specific evidence is admissible on the issue. But 'loss of earnings' or 'loss of time' is of no moment unless each is related to the diminished earning capacity of the injured party. If a plaintiff's earning capacity is not totally destroyed, but only impaired, the extent of his loss can best be shown under the evidence by comparing his actual earnings before and after his injury. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712. But specific proof of actual earnings and income are evidentiary of the ultimate issue, and the true measure of damages is the diminished earning power or earning capacity of the plaintiff, in the past or in the future, directly resulting from the injuries he sustained in the accident. Dallas Ry. & Terminal Co. v. Guthrie, 146 Tex. 585, 210 S.W.2d 550, 552; Gulf W.T. & P. Ry. Co. v. Abbott, 24 S.W. 299, 300 (Tex.Civ.App.), no writ; McIver v. Gloria, supra, 169 S.W.2d at p. 713; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616, 618; Green v. Rudsenske, 320 S.W.2d 228, 235--236 (Tex.Civ.App.), no writ. As stated in the latter case, the fact that an employer pays plaintiff's salary after injury on altruistic motives or for earned time is immaterial so far as plaintiff's right to recovery is concerned. We hold that earning power or earning capacity is the ultimate issue, and that the trial court did not err in submitting the damage issues and instructions to the jury.

Contention is made that the trial court erred in refusing specifically to instruct the jury that it should not consider or award damages attributable to the protrusion of Mrs. Craig's eye or any pain, suffering or disability attributable thereto or attributable to her dizziness. The trial court did instruct the jury that it could not take into consideration damages to Mrs. Craig attributable to hyperthyroidism. Since the jury could have found that the eye protrusion was attributable to hyper-thyroidism and that her dizziness resulted from the accident, we overrule appellant's contention. The medical testimony supports the inference that Mrs. Craig's dizziness and vertigo were attributable to the accident. See Port Terminal Railroad Ass'n v. Ross, 155 Tex. 447, 289 S.W.2d 220, 227. Further, we overrule the contention that there was reversible error in the failure of the court to instruct the jury that it should not consider damages attributable to Mrs. Guy's headaches. Mrs. Guy did not testify concerning headaches, and we do not believe the jury was mislead by a failure specifically to instruct thereon under the circumstances. It is only in exceptional cases that a contrary rule applies. See Rule 434, T.R.C.P. See and compare Tyler Mirror & Glass Co. v. Smipkins, 407 S.W.2d 807, 815 (Tex.Civ.App.), writ ref., n.r.e.

Appellant further contends that the verdict of the jury was so excessive as to all plaintiffs that a new trial should be ordered by this court, and that the jury was motivated by bias, prejudice, sympathy and a disregard for the evidence or by some other improper motive. It is further contended that the evidence is insufficient and against the overwhelming weight and preponderance of the evidence to support submission of the instructions on future incapacity; that the alleged errors are incurable by remittitur and a new trial is required. Complaint is further made as to Leger and others alternatively that this court must order remittiturs, that the remittiturs required by the trial court in the cases of Leger and Henry W. Edwards are insufficient, and that this court should require further remittiturs based upon the alleged excessiveness of the verdicts and insuffciency of the evidence to support the jury's assessment of damages.

These points of error require some discussion of the facts, especially as to Leger, whose final recovery after the trial court's remittitur was $350,000.00. It must be further noted that appellee, Leger, contends by cross-point that the remittitur granted by the trial court reducing the $525,000.00 verdict to $350,000.00 constitutes a manifest abuse of the discretion of the trial court and resulted in an unjust verdict as to Leger. Appellee requests this court to restore the reduction for such reasons.

The evidence shows that Leger was about 23 years of age at the time of the accident. He went to the seventh grade in school and his grades were fairly poor. He went to work in the cotton fields, picking cotton, digging potatoes and breaking corn. He can no longer do any of these things. At the age of 18 he went to work offshore for J. W. Bates working in the galley, cleaning dishes and fixing dinner. He returned to work in the cotton fields but he thereafter went to work offshore for Brown & Root as a roustabout. He carried sacks of cement and lifted pipe. He stayed with the latter company for approximately two years. He earned $400.00 for fourteen days of work, being off seven days and returning for another fourteen days. Immediately prior to the accident he had been working in Rockdale, Texas, as a bricklayer apprentice earning $2.75 an hour, forty hours a week. Prior to that he had worked for a contractor for about nine weeks helping build board roads in the oil fields at $1.25 an hour. He was agile before the accident. He is not now qualified to do any work which requires the use of his hands, legs and back. He knew nothing of the accident, because he went to sleep shortly after entering the bus. When he became conscious he was pinned under one of the bus seats. He smelled smoke and was scared. A welder cut him out from under the seat, and he was the last person to be taken off the bus. He was taken to the emergency room at the Sulphur Hospital and was conscious at the time. He was then taken to St. Patrick's hospital at Lake Charles, Louisiana. He there realized that one of his legs was almost off, and he knew that a part of his hand was going to have to come off. He did not know the lower leg was injured because he could not feel it. His right shoulder was broken, both legs were broken, and he had cuts on his face and legs. His cuts and his shoulder have healed. He has required surgery four times on his left leg, and his right leg was so smashed up they could not do anything about it but put it in a cast. He had fractured his left foot in 1964 prior to the accident, he fractured his leg in an automobile accident in 1966, and he fractured his left knee in an accident in December, 1966. The accidents set him back to some extent. The trial court by proper instruction excluded consideration by the jury of those items not related to the accident in question. In the bus accident both legs were broken, the right and left frmurs sustained compound fractures. There was a large open wound of the left tibia. The right fibula had sustained a compound fracture. There was a dirty wound,...