Jones v. Martin

• Decision Date: 14 March 1972
• Docket Number: No. 8094,8094
• Citation: 481 S.W.2d 467
• Parties: Vertine JONES, Jr., et al., Appellants, v. C. R. MARTIN, Appellee.
• Court: Texas Court of Appeals

Page 467

481 S.W.2d 467

Vertine JONES, Jr., et al., Appellants, v. C. R. MARTIN, Appellee.

No. 8094.

Court of Civil Appeals of Texas Texarkana.

March 14, 1972.

Rehearing Denied May 16, 1972.

Charles H. Clark, Tyler, for appellants.

Sam B. Hall, Jr., Smith, Hall & Huffman, Marshall, for appellee.

RAY, Justice.

Appellee (Plaintiff) C. R. Martin brought suit in the District Court of Harrison County seeking recovery for his personal injuries and property damages against Jessie D. Jones and Vertine Jones, Jr., Appellants (Defendants). Martin's pickup truck was struck by an automobile owned by Jessie D. Jones and driven by his nephew, Vertine Jones, Jr., as Vertine attempted to cross FM Road No. 31. The collision occurred at the intersection of Airport Road and FM Road No. 31 in Marshall. The Jones vehicle was headed in a westerly direction on Airport Road and had stopped at the stop sign before entering the intersection. Martin's vehicle was traveling in a southeasterly direction at the time of the collision. The jury verdict found Vertine Jones, Jr., guilty of primary negligence in the operation of his vehicle, and the trial court accordingly entered judgment for Appellee Martin in the sum of $16,658.00 and costs. Jessie D. Jones had been dismissed personally as a party defendant at the close of all of the testimony, and was then appointed guardian ad litem for the Appellant, Vertine Jones, Jr., after Appellee's opening argument to the jury. Appellants timely filed their notice of appeal and present five points of error for consideration by this court.

In Appellants' first three points of error they urge that the trial court erred in rendering judgment for Appellee Martin because there was no pleading to support the submission of Special Issue No. 11, Sec. (f); because there was no evidence to support the jury finding; and, because the jury's answer to such special issue was against the great weight and preponderance of the evidence.

The special issue in question was submitted as follows:

'Special Issue No. 11:

'What amount of money, if any, do you find from a preponderance of the evidence, would fairly and reasonably compensate the Plaintiff, C. R. Martin, for the injuries which Mr. Martin sustained in the collision in question?

ANSWER SEPARATELY IN DOLLARS AND CENTS, IF ANY, WITH RESPECT TO EACH OF THE FOLLOWING ELEMENTS:

(f) Any impairment to Mr. Martin's capacity to work and perform services of a monetary value, if any, that he will in reasonable probability sustain in the future as a proximate result of his injuries sustained in said collision.

ANSWER: $9,000.00.'

Relative to the adequacy of the Plaintiff's pleadings to sustain the submission of Special Issue 11(f) and to sustain the jury verdict, we are convinced that the pleadings and evidence were adequate. Appellee alleged that 'As a proximate result of the said Defendant's negligence the Plaintiff suffered severe, painful and Disabling injuries.' Appellee further alleged that, 'He had undergone much physical pain and suffering, as well as mental anguish and loss of earnings and medical expenses past and future which are reasonably necessary, and the damages sustained by the Plaintiff as a proximate result of the collision caused by the Defendant's negligence are believed and alleged to be in the sum of at least $20,000.00, exclusive of the damage to his pickup, interest and court costs.' In his prayer, Appellee asked for 'the sum of $21,500.00, together with interest thereon at the legal rate from the date of judgment until satisfaction, for all costs of suit and general relief.' Appellants did not except to the Plaintiff's pleadings and have not brought forward any complaint about the admission of evidence introduced by Appellee Martin in support of his claim for lost earning capacity. Appellants' objection to Special Issue No. 11(f) is as follows:

'Defendant objects to Special Issue No. 11, Subsection (f) for the reason that there is no proper pleadings (sic) to support the submission of this issue, and for the further reason that the evidence in this case produced by the Plaintiff is directly contrary to what the jury is being asked to speculate, engage in conjecture about; and, for this reason, it is improper to submit this portion of Special Issue No. 11 to the jury.'

We do not believe that the quoted objection was sufficiently specific, and was therefore waived. Rule 274, Tex.R.Civ.P.

' An objection to meet the requirements of Rule 274, must be such that the trial court can determine in exactly what manner the charge or instruction needs to be changed.' Home Insurance Co. v. Burkhalter, 473 S.W.2d 318 (Tex.Civ.App. Texarkana 1971, no writ). Also, since Appellants had failed to except to Appellee's pleadings, or object to the evidence of impaired earning capacity, Appellants' objection to the charge was untimely. Agnew v. Coleman County Electric Cooperative, Inc., 153 Tex. 587, 272 S.W.2d 877 (1954).

We further believe that the trial court was correct in submitting Special Issue 11(f) in view of the holding in Cowden Cab Company v. Thomas, 425 S.W.2d 886 (Tex.Civ.App. Fort Worth 1968, writ ref'd, n.r.e.). The court upheld the submission of special issues inquiring as to 'loss of past earnings and decrease in future earning capacity' because no exceptions were filed to the Plaintiff's pleadings. There the Plaintiff's petition stated, 'Plaintiffs would further show the court and jury that because of the injuries which she has received and the pain and suffering and the mental anguish to which she has been subjected by reason of the injuries received by her, that she has been damaged in the sum of Fifteen Thousand ($15,000.00) dollars.' The prayer for relief included, 'For such other and further relief, special and general, in law and in equity, to which they may show themselves justly entitled.' In the case before us now, Appellee Martin alleges, 'Loss of earnings and medical expenses, past and future, which are reasonably necessary, * * *'; and then prays for a judgment of $21,500.00 and 'general relief.'

The context in which we find Appellants' first point of error is an allegation by Appellee Martin that his injuries were disabling and that he had future loss of earnings. No exception was taken to these pleadings by Appellee. Testimony was introduced without objection relative to the impairment of Appellee's earning capacity. We have held that Appellants' objection to Special Issue No. 11(f) was not sufficient under Rule 274, Tex.R.Civ.P. Under these circumstances, we hold that the trial court properly submitted Special Issue No. 11(f). Appellants' first point of error is overruled.

A reasonable conclusion to be drawn from the testimony would be that Appellee Martin would have future loss of earnings well in excess of $9,000.00, since the medical testimony shows that he is totally and permanently disabled and his testimony shows he was 52 years of age at the time of the collision. The evidence establishes that Martin was making $500.00 per month for his services prior to the collision.

In Greyhound Lines, Inc., v. Craig, 430 S.W.2d 573 (Tex.Civ.App. Houston 14th, 1968, writ ref'd, n.r.e.), the Houston Court of Civil Appeals had occasion to review the relationship between 'diminished capacity to work and labor' and 'loss of earnings.' There the court said,

'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. McIven 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.'

Future loss of earnings is but one evidentiary element to be considered in arriving at the loss of earning capacity. In Texas Electric Ry. v. Worthy, 250 S.W. 710, 712 (Tex.Civ.App. Dallas 1923, writ dism'd), the court stated:

'Earning capacity does not necessarily mean the actual earnings that one who suffers an injury was making at the time the injuries were sustained. It refers to that which, by virtue of the training, the experience and the business acumen possessed, an individual is...