Members Mut. Ins. Co. v. Martin

• Decision Date: 10 January 1974
• Docket Number: No. 18239,18239
• Citation: 504 S.W.2d 603
• Parties: MEMBERS MUTUAL INSURANCE COMPANY, Appellant, v. Earl MARTIN, Appellee.
• Court: Texas Court of Appeals

Page 603

504 S.W.2d 603

MEMBERS MUTUAL INSURANCE COMPANY, Appellant, v. Earl MARTIN, Appellee.

No. 18239.

Court of Civil Appeals of Texas Dallas.

Jan. 10, 1974.

Rehearing Denied Jan. 10, 1974.

Michael H. Sebastian, Law Office of Pat McClung, Dallas, for appellant.

Bertran T. Bader, III, Bader, Wilson, Menaker, Cox & Branson, Dallas, for appellee.

BATEMAN, Justice.

This is an uninsured motorist case. Earl Martin sustained bodily injuries in an automobile collision and sued appellant, his own liability insurer, for his damages alleging that the driver of the other car was uninsured. All issues were stipulated except the amount of damages which was submitted to the jury in one special issue with five parts. The insurer appeals from the judgment awarding the damages as found by the jury as follows:

                a. Physical pain and mental anguish in the
                     past ......................................... $1,500
                b. Physical pain and mental anguish which
                     in reasonable probability, he will suffer
                     in the future ................................ $2,000
                c. Loss of earnings in the past ................... $2,475
                d. Loss of earning capacity which, in reasonable
                     probability, he will sustain in
                     the future ................................... $2,000.
                e. Reasonable expenses of his necessary
                     medical care in the past ..................... $  542.
                

Appellant complains only of the third and fourth items listed above, and in its first eight points of error on appeal contends that there was no evidence, and insufficient evidence, to support either the submission of those two issues or the findings thereon.

As to the loss of earnings in the past, appellant points out that Martin had testified that he lost only eighteen days of work at his regular office job, amounting to only $518.28. Martin testified that prior to the accident of April 3, 1969 he had earned five or six hundred dollars a year painting houses in his spare time, but had been unable to do this kind of work since the accident because of dizziness when he looked up. Appellant replies to this contention by arguing that there was no competent evidence of a causal connection between the injuries received in the collision and the complained of dizziness.

Dr. Hunter was Martin's personal physician and examined him for the injuries received in this accident, beginning on April 10, 1969. His records of the several examinations are in evidence and show that on April 10, 1969 Martin was 'a little dizzy when lies down or gets up,' and is 'sometimes dizzy when moves head to right.' Dr. Hunter prescribed medicine to be taken from two to three times a day for this dizziness. In his deposition Dr. Hunter testified that in his opinion the accident would reasonably account for the injuries found by him upon the said initial examination. He examined Martin again a year later, in April 1970, and found that he was still dizzy when he looked up, and that Martin told him that since the accident of April 3, 1969 he had had a feeling of dizziness when he looked upward, and also occasionally when he gets out of a chair. In February 1971 Dr. Hunter examined him again and found that he still had some dizziness when he looks up as far as he can and also occasionally when he first gets out of bed in the morning; also that the base of his neck stays a little sore all of the time. Dr. Hunter checked him again in April 1972, when Martin continued to complain of dizziness if he turns his head to look up, also of occasional pains in the center of his neck below the skull in the back, and that he could not turn his head to the right as far as he could to the left, and stated that he had quit his part-time house painting because he got dizzy on the ladder when he looked up.

Thus there was competent medical evidence of a causal connection between the accident and the dizziness. In the four years between the date of the accident and the time of trial, at five or six hundred dollars a year this loss of extra earnings could have amounted to from $2,000 to $2,400, and when this is taken into consideration in addition to the value of the eighteen days lost at his regular job it would in our opinion justify the finding of $2,475 as loss of earnings in the past, which the jury found in answer to special...