Hammett v. Zimmerman, 2-90-093-CV

• Decision Date: 26 February 1991
• Docket Number: No. 2-90-093-CV,2-90-093-CV
• Citation: 804 S.W.2d 663
• Parties: Nan J. HAMMETT and Sherry L. Hammett, Appellants, v. Ed ZIMMERMAN and Sandra Zimmerman, Appellees.
• Court: Texas Court of Appeals

Page 663

804 S.W.2d 663

Nan J. HAMMETT and Sherry L. Hammett, Appellants, v. Ed ZIMMERMAN and Sandra Zimmerman, Appellees.

No. 2-90-093-CV.

Court of Appeals of Texas Fort Worth.

Feb. 26, 1991.

Dushman & Friedman, P.C., Lowell E. Dushman and Charles Kennedy, Fort Worth, for appellants.

Peebles, Betty & Brantley, and Paul Peebles, Fort Worth, for appellees.

Before FARRIS, LATTIMORE and DAY, JJ.

OPINION

DAY, Justice.

Nan J. Hammett and Sherry L. Hammett, appellants, brought this action against Ed Zimmerman and Sandra Zimmerman, appellees, for personal injuries sustained when their car was struck from the rear by a car driven by Sandra Zimmerman on July 8, 1986. The jury found that Sandra Zimmerman was negligent and that such negligence proximately caused the collision. The jury also found the collision was the cause of injuries sustained by both the Hammetts and which required medical care in the amounts of $609.00 and $798.00, respectively. The jury gave no award for other damages, including the Hammetts' alleged claim for physical pain and mental anguish. The Hammetts' motions for mistrial and new trial were denied, from which they brought this appeal.

We reverse and remand for a new trial as to Nan Hammett and affirm with respect to Sherry Hammett.

In their first and fourth points of error, the Hammetts claim the trial court erred in failing to grant a new trial because the jury's findings of no past pain and mental anguish in jury questions two and three were so against the great weight and preponderance of the evidence as to be manifestly unjust. The Hammetts assert in points of error two and five that the trial court erred in failing to grant a mistrial because they were entitled to a new trial as a matter of law by virtue of the jury's findings of liability and injury and its subsequent finding of no damages for past physical pain and mental anguish. The Hammetts' third and sixth points of error appear to be restatements of points of error one, two, four, and five. In essence, the Hammetts contend the jury could not disregard uncontroverted medical testimony that the Hammetts sustained injuries arising from their automobile accident. In addition, the Hammetts assert that the jury could not disregard its own findings of proximate cause and consequently award the Hammetts no damages for past pain and suffering. For purposes of expediency and judicial efficiency, we will address the Hammetts' points of error en masse.

The jury generally has the prerogative to set damages. However, it has no authority to completely ignore the undisputed facts of the case and arbitrarily fix an amount that is unsupported by the evidence. Thomas v. Oil & Gas Bldg., Inc., 582 S.W.2d 873, 881 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.); Taylor v. Head, 414 S.W.2d 542, 544 (Tex.Civ.App.--Texarkana 1967, writ ref'd n.r.e.). When there is uncontroverted evidence of an objective injury, a jury finding that the plaintiff suffered no past physical impairment and pain is against the great weight and preponderance of the evidence. See Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542, 548 (Tex.App.--Fort Worth 1989, writ denied) (jury findings that automobile passenger injured in collision suffered zero dollars past physical impairment and pain were so against the great weight and preponderance of the uncontroverted evidence as to be manifestly unjust); Russell v. Hankerson, 771 S.W.2d 650, 653 (Tex.App.--Corpus Christi 1989, writ denied) (jury's determination that the plaintiff was not entitled to any damages for past pain, mental anguish, and physical impairment was against the great weight and preponderance of the evidence since the plaintiff offered sufficient evidence which was not refuted by the defendant); Johnson v. Tom Thumb Stores, Inc., 771 S.W.2d 582, 587 (Tex.App.--Dallas 1989, writ denied) (jury finding that injured party experienced no physical impairment and pain in past was made against the great weight and preponderance of the evidence when there was uncontradicted testimony that party experienced pain); Loyd Elec. Co. v. Millett, 767 S.W.2d 476, 484 (Tex.App.--San Antonio 1989, no writ) (evidence of worker's past surgical procedures and testimony of worker's wife and son supported award of damages for pain and suffering); Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 493 (Tex.App.--Houston [14th Dist.] 1989, no writ) (evidence of victim's continuing pain, lost ability to enjoy recreational sports activities, and loss of future earning capacity was sufficient to support victim's recovery for past physical impairment); Robinson v. Minick, 755 S.W.2d 890, 893 (Tex.App.--Houston [1st Dist.] 1988, writ denied) (finding that automobile passenger who sustained fractures did not have any past physical impairment substantial enough to support a separate damages award was against the great weight and preponderance of the evidence); Porter v. General Tel. Co., 736 S.W.2d 204, 205 (Tex.App.--Corpus Christi 1987, no writ) (evidence in personal injury suit that the plaintiff was cut established that she was entitled to some compensation for past physical pain which she suffered). This is especially true when the jury finds a causal connection between the defendant's negligence and the injury sustained by the plaintiff. See Allright, Inc. v. Pearson, 711 S.W.2d 686, 693-94 (Tex.App.--Houston [1st Dist.] 1986), aff'd in part, rev'd in part, 735 S.W.2d 240 (Tex.1987) (evidence of causal connection between defendant's negligence and pain suffered by defendant sufficiently supported award for past physical pain where defendant's omissions were the proximate cause of the incident); Blount v. Earhart, 657 S.W.2d 898, 902 (Tex.App.--Tyler 1983, no writ) (rule that evidence of plaintiff's objective symptoms of injury cannot be disregarded by the jury if the defendants fail to refute it does not apply where the jury fails to find causation and the evidence shows that the cause of the alleged injury was an occurrence other than the accident in question). In such a case, the jury must award something for every element of damage resulting from the injury. Thomas, 582 S.W.2d at 881; Gallegos v. Clegg, 417 S.W.2d 347, 357 (Tex.Civ.App.--Corpus Christi 1967, writ ref'd n.r.e.).

To uphold a jury's finding that an injured party is entitled to nothing for past pain and suffering and mental anguish, the jury would be required to find by a preponderance of the evidence that the injured party's injury was unaccompanied by any pain and suffering. Sansom v. Pizza Hut of East Texas, Inc., 617 S.W.2d 288, 293 (Tex.Civ.App.--Tyler 1981, no writ); Fuller v. Flanagan, 468 S.W.2d 171, 178 (Tex.Civ.App.--Fort Worth 1971, writ ref'd n.r.e.); Gallegos, 417 S.W.2d at 357. In addition, the jury may deny such damages if the injuries sustained are "subjective" in nature. See Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex.App.--Dallas 1988, no writ) (jury finding of no damages for pain and suffering, contrary to the great weight and preponderance of the evidence, is proper when the indicia of injury and damages are more subjective than objective, that is, the more evidence of outward signs of pain, the less findings of damages depend on the claimant's own feelings and complaints); McGuffin v. Terrell, 732 S.W.2d 425, 427 (Tex.App.--Fort Worth 1987, no writ) (plaintiff was properly denied damages for past medical expenses and past pain and suffering where cumulative evidence reflected that no objective symptoms were discovered until a substantial time period after her accident, no surgical procedure was performed on the plaintiff, and the jury found that the injury sustained did not require all of the examinations and treatments received by the plaintiff); Landacre v. Armstrong Bldg. Maintenance Co., 725 S.W.2d 323, 325 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.) (jury properly denied damages for past physical impairment where the plaintiff testified she was permitted to return to work without restrictions from her physician, she returned to her other activities, she was able to participate in her former hobbies, and she was able to do everything she could before her accident despite her injury). This principle was succinctly set out in Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App.--Beaumont 1972, no writ):

If the plaintiff has objective symptoms of injury, ... and there is readily available testimony which the defendant could offer to refute such fact, plaintiff's evidence cannot be disregarded by the jury when the defendant fails to refute it.

On the other hand, if plaintiff's complaints are subjective in nature ... which the defendant may not readily dispute, then the negative answer of the jury to the damage issue will not be disturbed when it rests upon the testimony of the plaintiff alone.

Id. at 221.

Examples of objective evidence of injury supporting an award of damages for pain and suffering include:

1. skull and facial fractures (accompanied by the dripping of spinal fluid from the nose) (Robinson, 755 S.W.2d at 893);

2. organic brain syndrome and nerve damage (Cornelison, 777 S.W.2d at 545);

3. severe electrical burns (Loyd Elec. Co., 767 S.W.2d at 484);

4. broken hip (Johnson, 771 S.W.2d at 587);

5. linear fracture of the foot (Russell, 771 S.W.2d at 653);

6. cut (Porter, 736 S.W.2d at 205);

7. lacerations, tendinitis, and torn muscles requiring surgery (Crowe v. Gulf Packing Co., 716 S.W.2d 623, 624 (Tex.App.--Corpus Christi 1986, no writ));

8. reverse curvature of the spine, concussion, and lumbar sprains (Del Carmen Alarcon v. Circe, 704 S.W.2d 520, 521 (Tex.App.--Corpus Christi 1986, no writ)); and

9. broken ankle requiring full cast (Fuller, 468 S.W.2d at 178).

Our determination as to whether objective evidence of injury exists requires that we look only to the jury's answers to questions one, two, and three and the uncontroverted testimony of Dr. Kenneth Winton, an...