Hoffman v. French, Limited, 119

• Decision Date: 16 September 1965
• Docket Number: No. 119,119
• Citation: 394 S.W.2d 259
• Parties: Albert HOFFMAN, Appellant, v. FRENCH, LTD., a Corporation, et al., Appellees.
• Court: Texas Court of Appeals

Page 259

394 S.W.2d 259

Albert HOFFMAN, Appellant, v. FRENCH, LTD., a Corporation, et al., Appellees.

No. 119.

Court of Civil Appeals of Texas, Corpus Christi.

Sept. 16, 1965.

Rehearing Denied Oct. 14, 1965.

Austin Y. Bryan, Jr., Houston, Moise H. Simon, Bay City, For appellant.

Richard B. Miller, of Baker, Botts, Shepherd & Coates, Houston, W. Jack Salyer, of Harris & Salyer, Bay City, for appellee.

SHARPE, Justice.

This is an appeal from a take-nothing judgment rendered after jury trial in favor of James H. Edwards and French, Ltd., a corporation, appellees, defendants below, against Albert Hoffman, appellant, who as plaintiff below sued for actual and exemplary damages on account of personal injuries allegedly sustained as a result of an automobile collision which occurred on January 11, 1963, in Bay City, Texas. Appellant, a police officer of said city, was in a police car stopped at an intersection red traffic light when a vehicle driven by Billy Luter collided with it from the rear. That collision immediately followed another which was caused by appellee Edwards driving a car owned by appellee, French Ltd., into the rear of Luter's vehicle.

Appellees stipulated that Edwards was guilty of conduct constituting ordinary negligence proximately causing the collisions mentioned; however, they denied any acts of gross negligence or that appellant received any injuries on such occasion.

The charge of the Court contained 19 special issues including those conditionally submitted. In response thereto the jury found there was no gross negligence on the part of appellees and that appellant had not suffered damages of any kind. Judgment was rendered on the verdict that appellant take nothing by his suit.

Appellant urges thirty-two points of error. His basic contentions are: (1) there is no evidence and the evidence is factually insufficient to support the answers of the jury, (2) that various acts of jury misconduct occurred, and (3) that an accumulation of errors is presented; all of which appellant says requires that the judgment be reversed and the cause remanded for new trial. Appellees assert five counter points in support of the judgment.

We have concluded that appellant's points do not demonstrate reversible error and that the judgment should be affirmed.

The crucial issue in this case was whether appellant suffered any injuries on account of the collision in question. The court submitted four special issues (Numbers 13, 14, 15, and 16) in usual form, concerning actual damages claimed to have been suffered by appellant. Special issue 13 inquired as to what sum of money, if any, if paid now in cash, will fairly and reasonably compensate the plaintiff, Albert Hoffman, for such injuries and damages, if any, which have been suffered and sustained by him, and, in reasonable probability, will be sustained in the future, directly and proximately resulting from the collision in question, taking into consideration the elements of physical pain in the past and in the future, mental anguish in the past and future, loss of earnings to the tate of trial, and the reasonable present cash value of diminished capacity to work and perform services. Special issue 14 inquired as to compensation for necessary medical expenses incurred by appellant to the date of trial as a result of the injuries, if any, sustained by him in the occurrence of January 11, 1963. Special issue 15 inquired if appellant, in reasonable probability, would require medical treatment in the future on account of injuries, if any, sustained by him in such collision. Special Issue 16 asked substantially the same question concerning compensation for medical expenses in the future as was inquired about in issue 14. The jury did not answer any of issues 13, 14, 15, and 16 favorably to appellant, thus finding, in effect, that he did not suffer any damages on account of the incident in question.

(1) We cannot agree that there is no evidence or that the evidence is factually insufficient to support the answers of the jury concerning actual damages. Appellant's case largely depended upon his own testimony and upon subjective complaints. There was substantial evidence tending to show that appellant had not suffered injuries in the collision and the jury accepted that view. There was evidence which would authorize the jury to find that the impact between appellant's car and the one behind it was a slight one; that the damage to the police car was slight, and ordinarily would not be calculated to produce injury to its occupants; that appellant suffered no visible injuries after the accident, but walked around, talked to people and drove his car to the police station.

Appellant's testimony left much to be desired. Appellees say that, at least, appellant was guilty of what Sir Winston Churchill once called 'terminological inexactitude', and, at most, 'his testimony was a tissue of improper, inaccurate and slanted statements about which he could not have conceivably made so many honest mistakes'. Whether the jurors agreed to either of these positions or took an inbetween view, it is apparent that they were not impressed by appellant's testimony or other evidence to the effect that he was injured in the collision.

The jury could have believed that appellant was impeached on several significant and material points and that his testimony concerning injuries allegedly suffered in the collision could not be credited. When his deposition was taken appellant denied involvement in other automobile accidents, but the evidence at the trial established that he had been in two such accidents within recent years. Appellant testified he resigned from the police force because his physical condition would not allow him to work, but other evidence tended to show he was let out for reasons not related to his physical condition. Appellant testified he had no prior back trouble and told Dr. Bradford he had no prior back or neck disability, yet another of his own doctors testified he had hospitalized appellant for back trouble some years before the instant accident. Appellant also conceded that after the accident in question he was attended by a doctor as a result of being struck by a chair in a bar fight and shooting incident (in which appellant shot and killed one of the participants). Other evidence, including x-rays and opinions, tended to show that plaintiff's condition immediately after the accident involved old conditions or injuries which were not due to the accident in question.

The doctors who examined appellant after the accident of January 11, 1963 agreed that their diagnosis depended upon their receiving an accurate history from appellant. The jury could have believed that appellant either inadvertently or intentionally had not furnished the same to his doctors and that their opinions, to the extent they were favorable to him, were misguided. The medical evidence offered by appellees strongly rebuttd the contention that appellant had been injured in the instant accident, and indicated that appellant's sojourn of two weeks in the hospital was of his own making and shoice.

(2, 3) Appellant's contentions concerning the jury answers to Special Issues 14 and 15, inquiring concerning medical expenses, are without merit for the additional reason that the evidence was factually insufficient to support a recovery for the items claimed. Three doctors who examined appellant in the earlier period after the accident testified on the trial but did not give evidence as to the necessity of his treatment in terms of injuries suffered in the instant accident or as to the reasonableness of the expenses involved. Another doctor who examined appellant a short time before the trial was asked questions concerning statements for expenses in the total amount of $1,568.95, all of which, except $145.00 for services of the last doctor, were incurred before he came into the case. The last doctor testified over appellee's objection that the question as to necessity of such treatment was not related to the injuries in this case, that 'I think it is necessary for the treatment of the individual' and, generally, that the amount of $1,568.95, as shown by statements, represented the fair and reasonable value of services rendered to appellant. However, said witness did not relate the expenses to treatment for injuries received by appellant in the accident of January 11, 1963. The above-mentioned objection of counsel for appellees was well taken and should have been sustained. In the final analysis, the evidence as to medical expenses was factually insufficient to support a finding that the same were necessary or incurred on account of injuries sustained in the collision here in question. See Dalby v. Lyle, 105 S.W.2d 764 (Tex.Civ.App.1937, n. w. h.); Texas & N. O. R. Co. v. Barham, 204 S.W.2d 205 (Tex.Civ.App.1947 n. w. h.).

Appellant's points relating to the alleged legal and factual insufficiency of the jury answers to the actual damage issues are overruled.

(4, 5) Appellant's points concerning the alleged insufficiency of the evidence to support the jury answers to the issues which might furnish a basis for exemplary damages are in the same category as the issues on actual damages; there was some evidence and it was also factually sufficient to support such answers. The jury was authorized to answer as it did on the questions of gross negligence and exemplary damages. Appellees' claimed liability on such basis was thus eliminated from the case. Furthermore, an award of exemplary damages would not have been proper in the absence of a finding of actual damages, which the jury refused to make. Ft. Worth Elevators Co. v. Russell et al., 123 Tex. 128, 70 S.W.2d 397, 409 (1934); 17 Tex.Jur.2d Damages, § 177, p. 243. Appellant's points relating to the alleged legal and factual insufficiency of the jury answers to the issues involving liability for gross negligence and exemplary damages are...