Grocers Supply Co. v. Stuckey

• Decision Date: 05 June 1941
• Docket Number: No. 11231.,11231.
• Citation: 152 S.W.2d 911
• Parties: GROCERS SUPPLY CO., Inc., et al. v. STUCKEY.
• Court: Texas Court of Appeals

152 S.W.2d 911

GROCERS SUPPLY CO., Inc., et al. v. STUCKEY.

No. 11231.

Court of Civil Appeals of Texas. Galveston.

June 5, 1941.

Rehearing Denied July 2, 1941.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by Monte Stuckey against the Grocers Supply Company, Incorporated, and P. H. Cole, to recover for personal injuries allegedly received by the plaintiff in an accident in which the truck of the Grocers Supply Company, Incorporated, driven by P. H. Cole, struck the rear end of plaintiff's parked truck. From an adverse judgment, the defendants appeal.

Judgment affirmed.

Wood, Morrow, Gresham & McCorquodale, A. C. Wood, and Walter E. Boyd, all of Houston, for appellants.

Allen, Helm & Jacobs, Wm. States Jacobs, Jr., and George E. Pike, all of Houston, for appellee.

GRAVES, Justice.

This general statement, thought to be correct as such, after only immaterial alterations, is taken from the appellants' brief:

"This is a suit brought by Monte C. Stuckey for damages for personal injuries allegedly received in an accident on October 20, 1939, on Lyons Avenue, in the City of Houston, Texas.

"Plaintiff alleged that he had parked his truck on the south side of Lyons Avenue up against the curb, and that, while he was inside of his truck, a truck of the defendant Grocers Supply Company, Inc., which was being driven in an easterly direction along Lyons Avenue by the defendant P. H. Cole, negligently collided with the rear end of the plaintiff's truck, proximately causing the injuries and damages complained of by plaintiff.

"Upon a trial of the case the jury, in response to special issues, found negligence and proximate cause against appellants' truck driver: (a) In driving the truck at a speed in excess of twenty miles per hour; (b) in driving the truck at a speed which was dangerous under the circumstances; (c) in failing to keep a proper lookout; (d) in failing to keep the truck under proper control; (e) in failing to reduce the speed of the truck just prior to the collision.

"The jury found that the collision was not the result of an unavoidable accident.

"Each of the ten defensive issues submitted by the defendants was answered unfavorably to the defendants.

"In answer to the damage issue, the jury found the sum of $20,700.

"Upon plaintiff's motion for judgment, as well as the pleadings and evidence, the court rendered judgment against the defendants on October 12, 1940, for the sum of $20,700, with interest from that date at the rate of six per cent per annum."

Inveighing on appeal against the determination so adverse to them below, appellants do so through 9 propositions of law based upon 35 assignments of error, which, in the aggregate, deal with these 4 features of the cause:

(1) Proposition No. 1 complains of the admission of certain evidence adduced by the appellee on cross-examination of appellants' expert witness, through some 15 questions propounded by appellee to him, touching the appellee's physical condition from a medical and scientific standpoint — on the main ground that the questions were hypothetical in character and assumed facts that not only had not been shown on this trial, but were, further, foreign to the material issues involved therein;

(2) Nos. 2, 6, 7, 8, and 9 challenge the answer to special issue No. 36 (as well as the intrinsic correctness of it), wherein the jury awarded the appellee the $20,700 for his injuries, as having been not only too high under the circumstances, but also so excessive in amount and so against the great weight and preponderance of the testimony in its entirety as to have manifestly been based upon sympathy, passion, or prejudice, hence was clearly wrong;

(3) The third and fourth assail the court's action in having admitted the testimony of the appellee's expert witness, Dr. Ed Cowart, in these two respects: (a) "It is possible that he (appellee) had some muscles and ligaments that were pulled and sprained. The X-rays don't show that"; (b) "an injury to any arthritic joint may simply set up an irritation in that joint, like bending a rusty hinge, or something like that."

(4) The remaining fifth one asserts the court's action to have been prejudicial error, in permitting the appellee to show that, from October of 1929 to April of 1930, his average monthly earnings had been from $250 to $1,000 per month, through his connection with the "Personal Analysis Bureau", selling a professional service for the effective use and development of personality in business; whereas, at the time of this accident on October 20 of 1939, he had merely been averaging about $58 per week for some 10 months immediately prior thereto out of his small business of jobbing candy, gum, and other miscellaneous items — such testimony having been calculated to mislead rather than aid the jury in properly arriving at the appellee's damages from this accident.

Since this court is, at the outset, under bounden duty to determine whether or not appellants' first proposition is entitled to consideration — over the appellee's vigorous objection thereto — despite its great length, it is thus set out in full:

(1) "Where plaintiff brought suit for personal injuries arising out of an accident, and alleged injury to his spine, and on a trial of the case it was shown that within a very short time after the accident (October 20, 1939) he was taken to Jefferson Davis Hospital in Houston in an ambulance, after having been placed on a stretcher by ambulance attendants, and after arriving at Jefferson Davis Hospital he was placed upon a stretcher, and subsequently X-rays were taken of his spine, and that thereafter he was removed to the Pasadena Hospital, at Pasadena, Texas, and X-rays were taken at the Pasadena Hospital some 18 days after the X-rays were taken at Jefferson Davis Hospital, to-wit, November 8, 1939, and Dr. C. F. Osborn, plaintiff's witness, testified that although he was not a specialist in roentgenology but that he could interpret X-ray films, and that he made the X-rays taken at Pasadena Hospital on November 8, 1939, and that said films positively showed a compression fracture of the ninth thoracic or dorsal vertebra, and defendants placed upon the stand, in succession, Drs. G. E Lechenger, H. F. Poyner, C. P. Harris, and Leonard Myer, all of whom, with the exception of Dr. Poyner, are X-ray specialists, who testified that they had examined the X-rays taken at Jefferson Davis Hospital on the date of the alleged injury and positively that such X-rays did not show any evidence whatsoever of a fracture of the ninth thoracic or dorsal vertebra, and that the only deformity or defect of the ninth thoracic vertebra shown by such X-rays was a condition of long standing, not in any way caused by trauma, described as a `Schmarl's Node', and explained this condition by stating that between the vertebrae of the spine there are intervertebral discs of cartilage and in the central portion of such discs is a small fluid-like substance called `nucleus Pulposus' that acts as a cushion or shock absorber, and that above and below the nucleus pulposus on the surface of the cartilage are two thin plates of cartilage, and when these plates break, the semi-fluid or nucleus pulposus runs out and pushes itself through the vertebrae, which is not as hard, for instance, as the front part of one's shin bone, but, rather porous, or sponge like, and that when that process has taken place the rounded out defect resulting in the vertebrae is called a `Schmarl's Node', and that this condition of plaintiff's spine had existed prior to his alleged accident, and, on rebuttal, plaintiff, himself, produced Dr. R. K. McHenry, an X-ray specialist, who had examined, at the instance of the defendants, the X-rays taken at Jefferson Davis Hospital, and, also, without realizing it was the same man, had made X-rays of plaintiff, and Dr. McHenry substantiated the above witnesses to the effect that there was no fracture of the ninth thoracic vertebra but that the condition was a pre-existing one known as `Schmarl's Node', and there was absolutely no evidence presented at any time during the trial of the case to the effect that the plaintiff had a condition known as `Kummel's Disease', and there was absolutely no evidence adduced that the plaintiff had an intervertebral disc of the ninth vertebra congenitally subject to herniation, but which had not yet herniated, it was error for the court to admit evidence adduced by plaintiff, on cross-examination, of defendants' witness, Dr. Leonard Myer, that there is a type of compression fracture of the vertebra known as `Kummel's' which requires an abnormal vertebra that does not have the proper structural strength, proper density of calcium, and the additional element of the application of crushing force, and that if an X-ray is taken of one having this abnormality right after he is subject to such crushing blow, the X-ray will not reveal a fracture but that in time another X-ray taken at a later date will reveal a fracture, and the resulting fracture is called `Kummel's Disease', and `Kummel's Disease' must have an element of trauma, and, further, to bring out on cross-examination in this connection, that assuming one has an intervertebral disc congenitally subject to herniation of the nucleus pulposus but prior to application of force has not yet herniated, and that there is an inherited proclivity in that direction (facts which were not proven in this case) and that he gets a trauma, is knocked unconscious, is picked up carefully from where he fell and laid on a stretcher by trained ambulance men that know how to handle injured cases, taken to a hospital and is laid on a carrier, and is taken up to the X-ray room and X-rayed, that the probabilities are that the X-rays would ordinarily reflect a normal spine on the day of the injury, because this testimony was an adroitly conceived and successfully executed attempt on the part of plaintiff, over defen...