Marange v. Lew Williams Chevrolet, Inc., 14144

• Decision Date: 16 October 1963
• Docket Number: No. 14144,14144
• Citation: 371 S.W.2d 900
• Parties: John P. MARANGE et ux., Appellants, v. LEW WILLIAMS CHEVROLET, INC., Appellee.
• Court: Texas Court of Appeals

Page 900

371 S.W.2d 900

John P. MARANGE et ux., Appellants, v. LEW WILLIAMS CHEVROLET, INC., Appellee.

No. 14144.

Court of Civil Appeals of Texas, San Antonio.

Oct. 16, 1963.

Edwards, Yturri & De Anda, Corpus Christi, for appellant.

Lewright, Dyer & Edwards, J. M. Burnett, Corpus Christi, for appellee.

BARROW, Justice.

This is an appeal by John P. Marange and wife, Pauline Marange, from a judgment rendered in their suit to recover damages for personal injuries sustained by Mrs. Marange in a rear-end collision. The jury answered all liability issues favorably to plaintiffs and found damages in the sum of $3,250.00. Plaintiffs say that this sum is inadequate and have perfected this appeal.

Plaintiffs assert that the inadequate damages are the probable result of erros of the trial court in the admission and exclusion of evidence and by the submission of defensive issues in the court's charge. They also assert that the amount of damages found by the jury is manifestly too small and unjust and against the overwhelming weight and great preponderance of the evidence.

The accident occurred at a multiple street intersection in Corpus Christi on July 31, 1961, when a pick-up truck, operated by an agent of defendant, Lew Williams Chevrolet, Inc., ran into the rear of the car driven by Mr. Marange and occupied by Mrs. Marange as a passenger. It is undisputed that the accident was very minor from the standopint of property damage, as virtually no damage was done to either vehicle. Mrs. Marange was sitting sidwise on the seat and was thrown forward in such manner that her chin and right arm were bruised. Plaintiffs asserted that her injuries caused Mrs. Marange much physical pain and also alleged that fear as to her future, caused her to suffer extreme mental anguish. Plaintiffs alleged that Mrs. Marange had suffered other injuries prior to this accident, but that she had fully recovered and was able to maintain steady employment prior to July 31, 1961. They sought damages in the amount of $75,000.00.

The most contested issues in the trial related to the question of injuries to Mrs. Marange. The evidence commenced on October 2, 1962, and was not completed until October 9, 1962. Five doctors testified and their testimony covers over half of the 628-page statement of facts. Their testimony is sharply conflicting. There is medical evidence fully supporting plaintiffs' contention that Mrs. Marange sustained a ruptured cervical disc which will require surgery to correct, and has resulted in severe physical pain, and caused her considerable anxiety and depression. It was the contention of defendant, which is also supported by medical evidence, that Mrs. Marange's injuries were the result of a 1958 rear-end collision, and that her mental anguish was caused by her own emotional unstability.

Plaintiffs complain first of the trial court's refusal to admit evidence that two or three days after the accident, Mr. Marange developed pain in his lower back which required treatment by a doctor. Mr. Marange did not assert a claim for personal injuries, but urges that this evidence was admissible (1) for all purposes; (2) for the specific purpose of showing force of the impact; (3) for showing that the impact was of sufficient force to do harm to the human body; and (4) to impeach the testimony of defendant's driver that Mr. Marange had stated at the scene, that neither he nor his wife was hurt.

Plaintiffs cited three cases involving train accidents in which the courts held admissible the evidence of injury or noninjury of other persons on the train. In Levy v. Campbell, Tex.Sup., 19 S.W. 438, rev. Tex.Sup., 20 S.W. 196, the conductor who was seated in the same car and near plaintiff, and who fell in the same way as plaintiff, was properly permitted to testify that he was not injured and that all the shock was at the opposite and of the car. In Missouri, K. & T. Ry. v. Wright, 19 Tex.Civ.App. 47, 47 S.W. 56, and Lamar v. Panhandle, S. F. Ry., Tex.Com.App., 248 S.W. 34, it was held that evidence that another person was killed was admissible because it showed a violent impact, contrary to the contention of the railroad. Plaintiffs also cite the rule in blasting cases as illustrated by Weaver v. Benson, 152 Tex. 50, 254 S.W.2d 95, that force of the blast may be shown by what happened to nearby persons or structures.

Here all parties testified fully to the physical facts which showed the force of the impact. It was undisputed that Mr. Marange told the driver of the truck, after the accident, that he was not hurt. It is seen that Mr. and Mrs. Marange were sitting in different positions in their car. Mrs. Marange was sitting sidewise in the seat and was thrown into the dashboard. Mr. Marange testified without objection that his back hurt a day or so after the accident. We do not believe that the further testimony as to his physical condition and diagnosis by the doctor of a sprained sacriliac muscle would have shed any light on whether or not Mrs. Marange's neck was seriously injured. The trial court did not abuse its discretion in refusing to admit this collateral evidence. Texas Employers Ins. Ass'n v. Scott, Tex.Civ.App., 233 S.W.2d 171. In any event in view of the determination by the jury that Mrs. Marange was injured, plaintiffs were not harmed by the exclusion of this evidence.

In their second point, plaintiffs complain of the introduction of evidence that Mrs. Marange had settled her claim growing out of the 1958 accident for approximately $3,500.00. Plaintiffs very carefully filed a motion in limine before the evidence commenced to prohibit defendant from referring to any prior claims, settlements or payments. This motion was overruled by the trial court. Both Mr. and Mrs. Marange were interrogated, over their objection, in regard to this settlement. ...