Miller v. Hooper

• Decision Date: 04 May 1936
• Docket Number: No. 4598.,4598.
• Citation: 94 S.W.2d 230
• Parties: MILLER et al. v. HOOPER.
• Court: Texas Court of Appeals

94 S.W.2d 230

MILLER et al. v. HOOPER.

No. 4598.

Court of Civil Appeals of Texas. Amarillo.

May 4, 1936.

Error from District Court, Hale County; R. C. Joiner, Judge.

Action by Robert E. Hooper against Luther F. Miller, Dude Miller, Floyd Miller, and Earl Meek, wherein Luther F. Miller, Dude Miller, and Floyd Miller filed a cross-action against Earl Meek. To review the judgment, defendants bring error.

Reversed and remanded.

Lightfoot & Robertson and Nelson Scurlock, all of Fort Worth, Will R. Saunders, of Amarillo, and E. F. Ritchey, of Miami, for plaintiffs in error.

Peyton Randolph, of Plainview, and Bledsoe, Crenshaw & Dupree, of Lubbock, for defendant in error.

JACKSON, Justice.

The appellee, Robert E. Hooper, instituted this suit in the district court of Cottle county against the appellants Luther F. Miller, Dude Miller, Floyd Miller, and Earl Meek to recover damages he claims to have sustained on account of the negligence of the appellants.

He alleged that the Millers were partners, doing business under the firm name of Miller & Miller Motor Freight Lines, and engaged as a common carrier transporting freight for hire between points in the state of Texas over the Texas highways, and employed Earl Meek as their agent, whose duty it was to drive and operate one of their trucks in the transportation of freight; that on July 5, 1933, the appellee, with two companions, was in his Ford coupé, traveling east on state highway No. 28, and about four miles east of the town of Paducah, overtook a truck belonging to the partnership, operated by Earl Meek, who was driving in the middle of the highway, leaving no room to pass; that J. B. Cardwell, who was driving the Ford coupé, sounded the horn, and the truck moved over to the right side of the road, apparently to allow appellee and his companions to pass; that the driver of the coupé increased his speed in an effort to pass, and had driven up even with the front of the truck when the driver thereof, without warning, suddenly turned the truck to the left, and with great force struck, overturned, and wrecked the coupé, and inflicted personal injuries upon appellee, by reason of which he was damaged in the sum of $20,860. He alleged that Meek, the driver of the truck, was acting within the scope of his authority, and was guilty of several acts of negligence, each and all of which proximately caused his damages; pleaded his personal injuries, hospital and medical bills, and the damage to his coupé.

The Millers answered by general demurrer, special exceptions, general denial, and alleged numerous acts upon the part of appellee and the driver of the coupé which they claimed constituted contributory negligence, and, in a cross-action, sought a recovery against Earl Meek for whatever sum was adjudged against them in behalf of appellee.

Earl Meek limited his pleading to answering the cause of action alleged by appellee, urged general demurrer, general denial, and adopted the answer of his co-defendants, Luther, Dude, and Floyd Miller.

On motion of appellee, the case was transferred to the district court of Hale county, and, upon a trial before a jury, a special issue verdict was found in favor of appellee, and, based thereon, judgment was rendered that he recover from the appellants, jointly and severally, damages aggregating the sum of $8,598, and that the Millers have judgment on their cross-action against Earl Meek for a like amount, from which, by writ of error, this appeal is prosecuted.

The appellants assail as erroneous the action of the court in permitting appellee, over their objection, while on the stand in his own behalf, to give the following testimony: "Q. Mr. Hooper, not considering your earnings from your business at all, in what amount has your earning capacity been diminished by reason of your injury in this case? A. Easily $400.00 a month."

The objections urged to this testimony were that it was irrelevant, immaterial, and purely an opinion and conclusion of the witness which he was not qualified to give.

One of the material questions which it was the province of the jury to ascertain was the amount of damages appellee had suffered because of his diminished earning capacity. The general rule is that a witness, even if he be a litigant, is not permitted to state the amount of damages he has suffered on account of personal injuries, since that is the exact point on which the jury is to pass. 22 C.J. 504, § 598.

If the opinion of a witness is ever admissible to show the amount of damages resulting from diminished earning capacity, the facts on which such opinion is based should be revealed by the witness, but appellee failed to state facts which would qualify him to give such an opinion.

In King v. Roberts et al., 84 S.W.(2d) 718, 721, the Commission of Appeals says: "The trial court erred in permitting King to testify in his own behalf to the legal conclusion that he was damaged in the sum of $750 on account of being refused opportunity to make bail. This was error. The Court of Civil Appeals correctly states that King should state the elements of the damages he has sustained, if any, and not swear to a conclusion that he had been damaged in a lump sum."

In Galveston, H. & S. A. Ry. Co. v. Wesch, 85 Tex. 593, 22 S.W. 957, which was a suit to recover damages for personal injuries, Judge Gaines says: "During the progress of the trial, the defendant, who was under examination as a witness, was asked by his counsel the following question: `State, if you can approximate, what expenses you have been at by reason of the accident and injuries received.' The question was objected to on behalf of the defendant, but the court overruled the objection, and permitted the witness to answer, `About $750 or $800.' The ruling of the court was excepted to, and was assigned as error upon the appeal. The action of the court in permitting the question and answer was clearly erroneous. The plaintiff must have known of what his expenses consisted, and should have been required to state them in detail. His answer to the question as propounded was dependent upon his opinion as to what expenses were legitimately chargeable to his injuries, and was, in effect, a conclusion upon mixed questions of law and fact."

In Little Rock, M. R. & T. Ry. v. Haynes, 47 Ark. 497, 1 S.W. 774, 775, in passing upon a personal injury case, the Supreme Court of Arkansas says:

"After detailing the nature and extent of his injuries, and the circumstances under which he was struck, the plaintiff was asked this question: `Taking into consideration the amount you have expended in attempting to cure yourself of your injuries, the present and prospective condition of your leg, the bodily pain and mental anguish, the time your have lost from your labor, your inability to labor and follow and attend to your business affairs in the future, how much were you damaged by the injury?' Plaintiff answered: `$4,500.' To the question and answer defendant objected, and, his objection being overruled, defendant at the time excepted.

"The impropriety of such a line of examination was pointed out by this court, nearly 40 years ago, in Pierson v. Wallace, 7 Ark. 282. This is one of the few subjects upon which there is absolutely no conflict in the authorities. A witness is never permitted to estimate the amount of damages which a party has sustained by the doing or not doing of a particular act. That is the province of the jury, and a witness cannot be allowed to usurp it. He may state facts showing the extent of the damages, and any other pertinent matters. But the measuring of the amount of damages in dollars and cents is not a fact. It is a matter of opinion or speculation."

See, also, Landrum v. Wells, 7 Tex.Civ. App. 625, 26 S.W. 1001; International & G. N. Ry. Co. v. Fickey, 59 Tex.Civ.App. 133, 125 S.W. 327; Pegues Merc. Co. v. Brown (Tex.Civ.App.) 145 S.W. 280, 281; Williams v. Gardner (Tex.Civ.App.) 215 S.W. 981.

This contention is sustained.

The appellants urge, by proper assignments, that the evidence was wholly insufficient to enable the jury to form an intelligent judgment relative to the amount of damages appellee sustained on account of his diminished earning capacity, and therefore the court committed error in submitting special issue No. 15, which is as follows: "What sum of money, if paid now in cash, do you find from a...