Lamb v. Franklin

• Decision Date: 25 August 1998
• Docket Number: No. 07-97-0243-CV,07-97-0243-CV
• Citation: 976 S.W.2d 339
• Parties: Irene LAMB, Appellant, v. Ruby Gaynell FRANKLIN and Allstate Indemnity Company, Appellees.
• Court: Texas Court of Appeals

Page 339

976 S.W.2d 339

Irene LAMB, Appellant, v. Ruby Gaynell FRANKLIN and Allstate Indemnity Company, Appellees.

No. 07-97-0243-CV.

Court of Appeals of Texas,

Amarillo.

Aug. 25, 1998.

G. Ben Bancroft, Bancroft, Mouton & Wolf, Big Spring, for appellant.

John P. Levick, G. Douglas Welch, Jones, Flygare, Brown & Wharton, Lubbock, Jack O. Nelson, Jr., Nelson & Nelson, Lubbock, for appellees.

Before BOYD, C.J., and DODSON and REAVIS, JJ.

DODSON, Justice.

Irene Lamb (Lamb) appeals a judgment rendered on a jury verdict in her favor on her personal injury suit against Ruby Gaynell Franklin (Franklin), and Allstate Indemnity Company (Allstate). Lamb raises two points of error. Franklin raises five cross-points. Allstate raises two cross-points. Because the trial court erred in disregarding material jury findings without a motion, and because there was no evidence supporting the jury's award for lost earnings, we reverse and render in part and reverse and remand in part.

This suit arises out of an automobile collision between Lamb and Franklin on October 31, 1995, in Levelland, Hockley County, Texas. Franklin turned left on a green light in front of Lamb who was approaching from the opposite direction between 35 and 40 miles per hour. Lamb applied her brakes, but the vehicles collided. Franklin was uninjured in the collision. Both vehicles were driven from the scene with minor damage. Lamb was admitted to the hospital that day and ultimately saw several doctors for treatment of back and neck injuries.

Lamb sued Franklin asserting an action for negligence. Lamb also sued her own insurance provider, Allstate, alleging that her injuries exceeded the coverage on the vehicle driven by Franklin ($50,000). Lamb alleged that pursuant to her contract for coverage with Allstate, Allstate was obligated to pay damages to her. The case came to trial on April 28, 1997.

The jury found that the negligence of both Franklin and Lamb proximately caused the collision, and that Franklin was 75% negligent and Lamb was 25% negligent. The jury further found the following amounts would compensate Lamb for her injuries: $0 for physical pain and mental anguish sustained in the past, $0 for physical pain and mental anguish that in reasonable probability she would sustain in the future, $2,000 for loss of past earnings, $0 for loss of earning capacity, $1,000 for physical impairment sustained in the past, $0 for physical impairment in reasonable probability she would sustain in the future, $7,000 for reasonable expenses of medical care in the past, and $1,000 for reasonable expenses of medical care in reasonable probability she would sustain in the future.

Lamb's Points of Error

Lamb raises two points of error. By her first point of error, Lamb contends that the jury's answer to the question regarding Lamb's physical pain and mental anguish sustained in the past is so contrary to the great and overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Through her second point of error, Lamb contends that the jury's answer to the question regarding the amount necessary to compensate Lamb for the physical pain and mental anguish that in reasonable probability she would sustain in the future is so contrary to the great and overwhelming weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Because Lamb did not present uncontroverted objective evidence of objective injury, we do not agree that the jury's zero answers were so against the great weight of the evidence as to be manifestly unjust.

In reviewing a factual sufficiency point we examine all of the evidence in the record, both for and against the challenged finding, in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986)(on rehearing); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). When we review the evidence, we may not reweigh it and set aside the verdict merely because we feel a different result is more reasonable. Pool v. Ford Motor Co., 715 S.W.2d at 634. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The jury may believe one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). The jury resolves inconsistencies in any witness's testimony. Id. Finally, we are mindful that Lamb, by a preponderance of the evidence, failed to convince the jury of a fact essential to her recovery. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

To uphold a jury's finding that an injured party incurred no damages for past pain and suffering, the jury must have found by a preponderance of the evidence that no pain and suffering accompanied the injury. Hammett v. Zimmerman, 804 S.W.2d 663, 665 (Tex.App.--Fort Worth 1991, no writ). When uncontroverted evidence of an objective injury exists, a jury finding that the plaintiff suffered no past pain and suffering is against the great weight and preponderance of the evidence. Id. at 664. However, a jury may deny an award of damages when the injuries sustained are subjective in nature. Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex.App.--Dallas 1988, no writ). Moreover, uncontroverted evidence of an objective injury does not always require mental anguish damages. See Elliott v. Dow, 818 S.W.2d 222, 224-25 (Tex.App.--Houston [14th Dist.] 1991, no writ).

Courts have upheld the jury's no injury or "zero damages" findings in cases where there is both subjective and objective evidence of the element of damages. In Srite v. Owens-Illinois, Inc., 870 S.W.2d 556 (Tex.App.--Houston [1st Dist.] 1993) rev'd on other grounds, 897 S.W.2d 765 (Tex.1995), the court of appeals concluded that where the preponderance of the evidence of injury was subjective, the jury answer of $0 was warranted. Id. at 563. The court noted that the plaintiff's expert testimony was contradicted by the defense's experts, and was thus not uncontroverted. Id. In Pilkington v. Kornell, 822 S.W.2d 223 (Tex.App.--Dallas 1991, writ denied), the jury did award some past and future medical expenses, but awarded no damages for, among other things, past and future pain, suffering and mental anguish. ¹ The Dallas Court determined that the evidence was conflicting and concluded that the verdict was not so against the great weight of the evidence as to be manifestly unjust. Id. at 230.

In this instance, the record reflects that Lamb testified extensively about the pain caused by the accident and the painful treatments she underwent to alleviate her problems. She also testified that she had a restricted range of motion in her neck as a result of the accident. There was testimony from several witnesses including Lamb that x-rays, an MRI, and a CAT scan showed no orthopedic injury and that she suffered a soft tissue injury.

Several doctors and a physical therapist testified on Lamb's behalf. Collectively, they described Lamb's subjective complaints of pain, as well as their own observations of her condition. The witnesses who examined Lamb described muscle tightness or tenderness in her back and neck and a restricted range of motion in her neck. The medical witnesses described the types of treatments Lamb received, including "trigger point injections" (shots of various drugs directly into muscles that are in spasm), deep massage (which the testifying witnesses agreed was a painful procedure), and various home exercises. Lamb also had "contusions" (bruises) on her back which were noted in hospital records. To varying degrees, these witnesses agreed that Lamb had improved somewhat under the treatments, but had not fully recovered. Different medical witnesses expressed different opinions as to whether Lamb had recovered as much as she could, or if further treatment would improve her recovery. Many of these observations and comments were recorded in hospital and doctors' records.

There was certainly subjective evidence of pain. Likewise, there was some objective evidence from Lamb's physicians and therapist showing that she suffered pain. However, the defense pointed out that every evaluation by each health care provider relied in part on responses from Lamb about her level of pain, making each evaluation at least partly subjective. There was also evidence that Lamb was seen by various persons carrying a grandchild or doing yard work. Lamb herself testified that she had done these things, while asserting that she was prevented from doing yard work or playing with her grandchildren. These witnesses testified that they saw Lamb moving her head and neck without difficulty until she noticed she was being watched. Moreover, the objective tests performed on Lamb, namely the x-rays, MRI, and CAT scan, showed no injury.

There was also evidence that the actual impact occurred at a very low speed since Lamb was initially traveling at under 40 miles per hour, she hit her brakes prior to the impact, and she believed she actually might not hit Franklin's car. The other driver involved in the accident was not injured. Damage to the vehicles was minor, and both were driven away from the accident scene.

Additionally, several of the medical witnesses admitted that tight muscles could be the result of high tension. Lamb's husband was suffering from severe medical problems for some time prior to the automobile accident. At that time and throughout her treatment, Doyle Lamb was alternately confined to his home or was admitted for hospital stays. Lamb referred to stress and tension related to her husband's condition when talking to her physical therapist, which the therapist noted in her records.

Finally, the defense presented testimony from Dr. Heydemann, who reviewed Lamb's case. Heydemann...