King v. Skelly

• Decision Date: 01 April 1970
• Docket Number: No. B--1749,B--1749
• Parties: George KING, Petitioner, v. J. S. SKELLY d/b/a J. S. Skelly Fuel Company, Respondent.
• Court: Texas Supreme Court

Page 691

452 S.W.2d 691

George KING, Petitioner, v. J. S. SKELLY d/b/a J. S. Skelly Fuel Company, Respondent.

No. B--1749.

Supreme Court of Texas.

April 1, 1970.

Buzzard & Comer, Ross N. Buzzard, Pampa, for petitioner.

Underwood, Wilson, Sutton, Heare & Barry, R. A. Wilson, Amarillo, for respondent.

SMITH, Justice.

This is an action for personal injuries growing out of a collision on the Pampa-Borger highway between an automobile and a truck. The suit is by petitioner, George King, against respondent, J. S. Skelly d/b/a J. S. Skelly Fuel Company, hereinafter designated as Skelly.

The case was submitted to a jury on special issues, resulting in findings favorable to the petitioner, King. Based upon the jury verdict, the trial court entered judgment for King against Skelly in the sum of $55,000.00, together with interest thereon at the rate of 6% From the date of entry of judgment until paid. That judgment was reversed by the Court of Civil Appeals and the cause was remanded to the trial court for a new trial. 443 S.W.2d 953. We reverse the judgment of the Court of Civil Appeals and remand the cause to that court to pass upon the points presented there over which this Court is without jurisdiction.

Skelly presented several questions of law in the Court of Civil Appeals. Some of these questions were passed upon the some were not. In view of our disposition of the question upon which the reversal by the Court of Civil Appeals was based, we shall, later in this opinion, dispose of all of the questions over which this Court has jurisdiction.

The Court of Civil Appeals based its judgment of reversal upon the ground that the trial court erred in overruling Skelly's objection to special issue no. 6, the damage issue. The objection was directed at Subdivision (c) of special issue 6. This subdivision, which is one of the elements the court instructed the jury it should take into account in arriving at what sum of money would fairly and reasonably compensate King for damages sustained, if any, reads:

'(3) The reasonable present cost value loss, if any, of earning capacity of George King as you may find from a preponderance of the evidence will in reasonable probability be sustained in the future beyond this date directly and proximately caused by the injury, if any, suffered by him as a direct and proximate result of the occurrence of June 21, 1966, made the basis of this suit.'

The objection in the trial court to the inclusion in the charge of the above instruction was because: '* * * the record is wholly lacking in testimony with respect to plaintiff's own earnings at anytime in the past, and hence, the record does not embrace that minimum evidence which is required of a plaintiff as the basis of a damage recovery founded upon the claim of reduced or impaired earning capacity.'

At this juncture, we shall state only the evidence bearing upon this question. Before his injury, petitioner had been engaged in a variety of jobs, but at the time of his injury he was in business for himself as a contractor; with his own equipment and with the aid of three or four employees, he principally did work for the Cities Service Company, including repairing and laying pipelines. King testified that he did all the welding involved in his contracting jobs. Although there was no evidence of King's prior earnings, he did testify that, before sustaining the injury he could have had a job as a pipeline welder, and that such welders make $14,000.00 to $17,000.00 per year; he also testified that prior to the trial but after being injured, he worked three weeks as a pipeline inspector, but that driving from site to site caused him too much pain to continue. He further testified that pipeline inspectors earn $650.00 per month. This, in substance, is the evidence relied upon by King and which he contends furnished with sufficient certainty a basis for the jury to arrive at the amount of his loss of future earning capacity.

The Court of Civil Appeals held that this testimony afforded no basis for the jury's award, relying upon Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117, (1959). The court in Bonney held that 'although the amount of damages resulting from impairment of a plaintiff's earning capacity must be left largely to the sound judgment and discretion of the jury, nevertheless the jury should not be left to mere conjecture where facts appear to be available upon which the jury could base an intelligent answer.' The plaintiff in that case had, prior to his injury, been a watch repairman and had, after the injury, been forced to give up that vocation because his vision was flawed.

In Bonney, we reaffirmed the rule in this jurisdiction that where a plaintiff seeks damages for impairment of earning capacity, he must prove the amount of such damages with the degree of certainty to which it is susceptible. We stated that '(t)his rule requires that a plaintiff introduce evidence from which a jury may reasonably measure in monetary terms his earning capacity prior to injury, unless some reason appears for his failure to do so.' However, we did not limit the required proof merely to evidence of his prior earnings; instead, we noted that '(t)he point at issue here is the absence of any evidence which would indicate Either the amount of Bonney's earnings Or a monetary measure of his earning capacity prior to the injury.' Emphasis added.

An analysis of three cases cited in Bonney is in order. In Dallas Consolidated Electric St. Ry. Co. v. Motwiller, 101 Tex. 515, 109 S.W.2d 918 (1908), plaintiff was a stenographer who had been injured in a street car accident; she introduced evidence showing the extent of her physical injuries and their duration, and that she had been strong enough before her injury to walk to and from work, but that after her injury she had been compelled to take public transportation; she failed, however, to introduce evidence of her actual earnings before the injury. In holding that submission of an issue on impaired earning capacity was justified by the evidence, we said:

'Evidence is adduced to put the jury in possession of facts from which they can determine the extent of impairment of earning power, and is not intended in itself to establish a fixed measure of damages. When the jury are informed of such a fact as that just stated, they have enough to enable them to allow something upon that score.'

In McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710 (1943), the plaintiff was a share-cropper, whose proof that he had averaged, over several years, thirteen to sixteen bales of cotton yearly was held to be a sufficient measure of his earning capacity, despite his failure to prove the value of that amount of cotton, or to prove what portion was attributable to his own labor. In the third case, Southwestern Freight Lines v. McConnell, 254 S.W.2d 422 (Tex.Civ.App.--El Paso 1952, writ ref'd), cited in Bonney, the plaintiff, manager of an automobile agency, failed either to introduce evidence of his earnings before the injury or evidence of some measure of his earning capacity. In that case, the court properly held that 'plaintiff did not discharge the burden incumbent upon him to produce available facts to enable the jury to arrive at an intelligent verdict as to the extent and amount of his loss of future earning capacity.' 254 S.W.2d at 425.

We believe that the Court of Civil Appeals in our case has misapplied the holding in Bonney. There we said that Bonney 'introduced no evidence of the amount of his earnings prior to injury and no evidence that such prior earnings did not represent his full earning capacity. No reason appears for his failure to introduce such proof. Therefore, the trial court erred in instructing the jury that it might take into consideration any impairment to Bonney's earning capacity, * * *.' The case was remanded to the trial court for a new trial. The record in our case leads to a different conclusion than that reached in Bonney.

King, prior to his injury, had been self-employed and his profits did not result solely from his own personal earning capacity but resulted from three sources: (1) his own labor, (2) the labor of three or four employees, and (3) the return on capital invested in machinery. Therefore, King's profits from his self-employment were not a true measure of his earning capacity. Furthermore, the trial court sustained a special exception to King's pleadings of loss of income and business profits. This explains King's failure to introduce evidence of his prior earnings. However, King relied upon a monetary measure of earning capacity other than his earnings prior to his injury. King's testimony shows that he could, by performing the same tasks in the employ of another which he performed while self-employed, earn from $14,000.00 to $17,000.00 per year. We hold that such evidence is a sufficient monetary measure of his earning capacity prior to the date of injury and meets the requirements announced in the Bonney case.

Having determined that the Court of Civil Appeals erred in reversing the judgment of the trial court on the loss of future earning capacity point, it is our duty to examine the brief filed by Skelly, as appellant in the Court of Civil Appeals, to determine whether there is another ground upon which the judgment of that court should be affirmed. See Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645 (Tex.Sup.1965); McKelvy v. Barber, 381 S.W.2d 59 (Tex.Sup.1964); Myer v. Great American Indemnity Co., 154 Tex. 408, 279 S.W.2d 575 (1955).

We now relate the background facts necessary for a clearer understanding of the questions to be considered below.

King was traveling west on the Pampa-Borger highway and Skelly's driver, Jess Bowerman, was traveling east on the same highway. Bowerman testified that he was approaching a parked trailer truck which was parked on the shoulder of the east-bound lane and was headed east when the driver of the...