Hernandez v. Baucum
| Decision Date | 01 March 1961 |
| Docket Number | No. 13717,13717 |
| Citation | 344 S.W.2d 498 |
| Parties | Jesus Ramirez HERNANDEZ et al., Appellants, v. A. T. BAUCUM, Appellee. |
| Court | Texas Court of Appeals |
Strickland, Wilkins, Hall & Mills, Mission, for appellants.
Carter, Stiernberg, Skaggs & Koppel, Harlingen, Crain & Colvin, San Benito, for appellee.
The jury awarded A. T. Baucum, appellee, $81,636 for neck and back injuries sustained when appellant Jacinto Hernandez drove a truck into the rear of appellee's car. Appellants, defendants below, complain that reference to a chart 1 and a mathematical formula in arguing damages was harmful. Appellants also complain of appellee's reference during cross-examination to abandoned pleadings which omitted the defense of sudden brake failure.
Prior to the argument, appellants' attorney in chambers anticipated that appellee's counsel was going to display a chart to the jury which portrayed appellee's claims for damages. The court refused to rule in advance, but during argument, the chart was displayed and the objection was made and overruled. The complaint here is that the chart was new evidence. In our opinion, the chart was argument about the evidence and inferences from the evidence, and the jury could have considered such a method of evaluation with or without the argument.
The portions of the chart to which the objections were leveled were the estimates about past and future pain and suffering and the percentage of claimed future earning capacity. Baucum, a healthy thirty-five-year-old employee of Central Power and Light Company, suffered severe permanent injuries to his neck and back. His injury was diagnosed as a whiplash injury of the neck. He presented his own testimony and that of lay and medical witnesses to prove that he suffers pain every day and is forced to take medicine continually for relief. He finds difficulty in working and comes home from work throughout the day, and holds his job by working overtime at night. He has a compression of a nerve root which involves the median nerve of his left hand. He has a spastic neck which will never again be normal. His injury is permanent and is getting worse. Certain motions and movements increase his pain. At times his pain is almost unbearable. As he said: 'I just nearly climb the wall * * * and usually have to just end up with complete medication and bed.' This is only a portion of the evidence of his condition.
Usually an objection to argument should be accompanied by a request for an instruction that the jury disregard the improper argument. Texas & N. O. R. Co. v. McGinnis, 130 Tex. 338, 109 S.W.2d 160; Davidson v. Whitfield Transp. Co., Tex.Civ.App., 258 S.W.2d 170; Green v. Rudsenske, Tex.Civ.App., 320 S.W.2d 228; Gillespie v. Rossi, Tex.Civ.App., 238 S.W.2d 547. There was no request for an instruction in this instance. The argument was not brought forward, and we do not know how, or if, the chart was mentioned. We are convinced, however, that the jury recognized the chart as the maximum claims by the appellee, for it awarded considerably less than the amounts argued. The jury granted $5,000 for past pain, instead of $22,000. It allowed $36,000 for future pain, instead of $54,000, and it found $36,000 for loss of earning capacity, instead of $90,000. See Green v. Rudsenske, supra; Magnolia Petroleum Co. v. Herman, Tex.Civ.App., 295 S.W.2d 430.
The propriety of arguments grounded upon a mathematical analysis has been accepted in Texas. Texas & New Orleans R. Co. v. Flowers, Tex.Civ.App., 336 S.W.2d 907, 916; Louisiana & Arkansas Railway Co. v. Mullins, Tex.Civ.App., 326 S.W.2d 263, 267-268; Continental Bus System, Inc. v. Toombs, Tex.Civ.App., 325 S.W.2d 153, 163; Texas Employers' Ins. Ass'n v. Cruz, Tex.Civ.App., 280 S.W.2d 388, 390; J. D. Wright & Son Truck Line v. Chandler, Tex.Civ.App., 231 S.W.2d 786, 789. The attack upon arguments and visual aids which cut the pain period into segments is that there is no evidence of the monetary value of pain, but that argument, if valid, would eliminate all awards of damages for pain. Pain is...
To continue reading
Request your trial
-
Beagle v. Vasold
...of Germantown (1965) 3 Ohio St.2d 96, 209 N.E.2d 442; Edwards v. Lawton (S.C.1964) 244 S.C. 276, 136 S.E.2d 708; Hernandez v. Baucum (Tex.Civ.App.1961) 344 S.W.2d 498; Olsen v. Preferred Risk Mutual Ins. Co. (1960) 11 Utah 2d 23, 354 P.2d 575; Jones v. Hogan (1960) 56 Wash.2d 23, 351 P.2d 1......
-
Caylor v. Atchison, T. & S. F. Ry. Co.
...23, 351 P.2d 153; Hill v. C. & E. Const. Co., Wash., 370 P.2d 255; Yates v. Wenk, 363 Mich. 311, 109 N.W.2d 828; Hernandez v. Baucum, (Texas Civil Appeals), 344 S.W.2d 498; Louisville & Nashville Railroad Co. v. Mattingly, (Kentucky), 339 S.W.2d 155; Evansville City Coach Lines, Inc. v. Ath......
-
Johnson v. Colglazier
...326 S.W.2d 263; Texas & N.O.R. v. Flowers, Tex.Civ.App., 1960, 336 S.W.2d 907; Hernandez v. Baucum, Tex.Civ.App., writ ref'd n.r.e., 1961, 344 S.W.2d 498; Chemical Express v. Cole, Tex.Civ.App., writ ref'd n.r.e., 1961, 342 S.W.2d Utah: Olsen v. Preferred Risk Mut. Ins. Co., 1960, 11 Utah 2......
-
Lucas v. U.S.
...Green v. Meadows, 527 S.W.2d 496, 499 (Tex.Civ.App.--Houston [1st Dist.] 1975, writ ref'd n.r.e.); Hernandez v. Baucum, 344 S.W.2d 498, 500 (Tex.Civ.App.--San Antonio 1961, writ ref'd n.r.e.).This unscientific process for determining non-economic damages has evoked increasing complaints in ......
-
Table of cases
...243 Conn. 17, 699 A.2d 964 (1997), §23:30 Henson v. City of Lawrenceburg , 851 S.W.2d 809 (Tenn. 1993), §8:24 Hernandez v. Baucum , 344 S.W.2d 498, 500 (Tex.Civ.App. - San Antonio, 1961), §9:05 Hicks ex rel. Saus v. Jones , 617 S.E.2d 457, 463-65, 217 W.Va. 107, 113-15 (W.Va. 2005), §23:22 ......
-
Table of Cases
...Hospital v. National Standard Ins. Co ., 776 S.W.2d 249 (Tex. App.—Houston [1st Dist.] 1989, writ denied), §11.03 Hernandez v. Baucum , 344 S.W.2d 498 (Tex. Civ. App.—San Antonio 1961, writ ref’d n.r.e.), §10. 19 Herrin v. Medical Protective Co. , 89 S.W.3d 301, 310 (Tex. App.—Texarkana 200......
-
Handling Evidentiary Issues
...v. Whittier , 280 Or. 25, 29-30 (1977). • South Carolina, Edwards v. Lawton , 244 S.C. 276, 281 (1964). • Texas, Hernandez v. Baucum , 344 S.W.2d 498, 500 (Tex.Civ.App. – San Antonio, 1961). There are four jurisdictions that allow per diem arguments, provided cautionary instructions are giv......
-
Table of cases
...243 Conn. 17, 699 A.2d 964 (1997), §23:30 Henson v. City of Lawrenceburg , 851 S.W.2d 809 (Tenn. 1993), §8:24 Hernandez v. Baucum , 344 S.W.2d 498, 500 (Tex.Civ.App. - San Antonio, 1961), §9:05 Hicks ex rel. Saus v. Jones , 617 S.E.2d 457, 463-65, 217 W.Va. 107, 113-15 (W.Va. 2005), §23:22 ......