Lowery v. Berry
| Decision Date | 30 June 1954 |
| Docket Number | No. A-4634,A-4634 |
| Citation | 153 Tex. 411,269 S.W.2d 795 |
| Parties | LOWERY v. BERRY et ux. |
| Court | Texas Supreme Court |
Thompson, Knight, Wright & Simmons, Pinkney Grissom and Timothy E. Kelly, Dallas, for petitioner.
Chaney & Davenport and Fred S. Harless, Dallas, for respondents.
Respondents, Nathaniel Berry and wife, brought this suit for themselves and as next friend for Bobbie Jean Jackson, a three-year-old girl, for injuries sustained by her when she was run over by an automobile driven by petitioner. Respondents were authorized to bring the suit by an assignment to them of all rights of the natural parents of the child. The assignment was attached to their petition. In answer to special issues the jury found that petitioner failed to keep a proper lookout, which was a proximate cause of the child's injuries; that respondents, the Berrys, were negligent in allowing the child to go into the street, and that this was a proximate cause, though not the sole proximate cause, of her injuries; and that $1,278.85 would compensate the Berrys for medical expenses incurred by them as a result of the child's injuries. In answer to an issue inquiring what sum of money, if any, paid in cash would fairly and reasonably compensate the child for her diminished capacity, if any, to work and earn money after she should reach the age of twenty-one years, for her disfigurement, if any, and for her physical pain, if any, and mental suffering, if any, in the past and in the future resulting directly and proximately from injuries sustained by her on the occasion in question, the jury answered 'None.' Upon the verdict, in response to a motion by petitioner, the trial court rendered judgment that respondents take nothing, either in their individual capacities or as next friend for the child. The Court of Civil Appeals, as we construe its opinion, held that under the verdict the trial court properly rendered judgment that the Berrys take nothing for themselves, but erred in rendering judgment that as next friend they should take nothing. Based upon such holding it reversed and remanded the cause in its entirety. Tex.Civ.App., 266 S.W.2d 917.
We granted the application for writ of error upon the tentative view that the judgment of the trial court should have been affirmed as to the Berrys and reversed and remanded only as to the child. Upon mature consideration of the case after submission we are confirmed in that view.
The injuries suffered by the child were unquestionably very serious. According to the physician who treated her she received multiple fractures of the skull and the skin and tissues of the left side of her head were so severely torn that that part of her skull was laid bare. The answer of the jury that she suffered no damage is not only unsupported by any evidence, but is directly contrary to all the evidence. The mental processes by which the jury arrived at that conclusion need not be recited. The undisputed facts disclosed that she did suffer damages, and the Court of Civil Appeals properly held, citing Rule 328, T.R.C.P., that the answer of the jury to the issue submitting her damages should be disregarded. The assignment from the natural parents to the Berrys had no relevancy to the question of whether the child had sustained damages.
For some reason the attorneys representing the Berrys filed a motion in the trial court for judgment on the verdict. They probably were of the opinion that under the verdict the Berrys could recover the amount found by the jury as medical expenses incurred by them, and were willing to waive the rights of the child for that recovery. The trial court properly ruled that the Berry were cut off from such recovery by the finding of contributory negligence on their part. We cannot sustain the contention that by the filing of that motion the rights of...
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Reagan v. Vaughn
...guardian ad litem. Tex.R.Civ.P. 44, 173. See Urbish v. 127th Judicial District Court, 708 S.W.2d 429, 431 (Tex.1986); Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954); Missouri-Kansas-Texas R.R. v. Pluto, 138 Tex. 1, 156 S.W.2d 265 (1941) (bill of review action by minor); see also Newma......
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Avila v. St. Luke's Lutheran Hosp.
...CIV. P. 44; Berry v. Lowery, 266 S.W.2d 917 (Tex.Civ.App.--Dallas 1954), aff'd in part and rev'd in part on other grounds, 153 Tex. 411, 269 S.W.2d 795 (1954). Abel argues that Avila is precluded from attacking the prior consent or agreed judgment because to do so constitutes an impermissib......
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Vanderlinden v. United Services Auto. Ass'n Property and Cas. Ins. Co.
...A jury may not ignore undisputed facts and arbitrarily fix an amount of damages which is neither fair nor just. Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954); Jacobs v. York, 662 S.W.2d 137 (Tex.App.--Fort Worth 1983, no writ). In cases where a jury found that objective physical dama......
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