Mills v. Jackson, 2-85-072-CV

CourtCourt of Appeals of Texas
Citation711 S.W.2d 427
Docket NumberNo. 2-85-072-CV,2-85-072-CV
PartiesFlora L. MILLS, Appellant, v. Judith R. JACKSON, Appellee.
Decision Date19 June 1986
OPINION

JOE SPURLOCK, II, Justice.

This is an appeal from a personal injury case involving an automobile accident. Flora L. Mills, appellant, alleged that as the result of the collision between her car and that of Judith R. Jackson, appellee, she sustained back injuries including an injured cervical disc. Appellant claimed $249,553.42 in damages for past medical expenses, past and future pain and suffering past lost wages, and future lost earning capacity. The jury awarded appellant $10,625. Appellant is claiming that the amount of this judgment is so small and inadequate that it is manifestly unjust and contrary to the overwhelming weight and preponderance of the evidence presented at trial.

We affirm the judgment of the trial court on the amount of damages awarded.

Appellant presents five points of error. In her first point of error, appellant claims that the trial court abused its discretion by failing to consider handwritten notations made in the margin of the jury's verdict which gave a breakdown of amounts awarded for separate damage elements under the special issue for total damages. In points of error numbers two and four, appellant contends the amounts awarded by the jury in its handwritten notations for the various elements of damages in this case are against the great weight and preponderance of the evidence and are so manifestly small and inadequate that a new trial should be awarded under TEX.R.CIV.P. 328. In points of error numbers three and five, the appellant asserts that the total amount of damages awarded by the jury in its answer to the special issue on damages is against the great weight and preponderance of the evidence presented at trial and is so small and inadequate as to be manifestly unjust.

Judith R. Jackson, appellee, filed four cross-points of error. In her cross-points one and two, appellee contests the admission into evidence of a computer summary of appellant's medical expenses and of a doctor's opinion testimony on the reasonableness and necessity of the expenses set forth in the computer summary. In cross-points three and four, appellee challenges the inclusion of damages for future pain and suffering and future loss of earning capacity in the special issue for total damages as these elements of damage were not properly pleaded by appellant.

The collision between the cars of the appellant and appellee took place on the morning of July 15, 1980 in the middle of an intersection in Tarrant County. Both automobiles sustained minor damages to their front ends and both were driveable after the collision. Neither party complained of any injuries at the time of the accident and no ambulance was called.

On the evening of the accident, appellant left her job as a bartender early to seek attention at a hospital emergency room for pain in the back of her neck and a slight dizziness. From the day of the accident until the trial, appellant made numerous visits to doctors complaining of back pains and she was hospitalized on four occasions for reasons relating to her alleged back problems.

There was no objective evidence of any injury to appellant's back until May 4, 1982. On that date, according to Dr. Thomas Barker, there were the first signs of radicular or nerve root pain. Appellant was hospitalized for lower back surgery from September 9 to 17, 1982 to repair a herniated disc. Appellant claims that her medical bills for her back problems since the accident have totalled to $15,615.42. Appellant requested damages of $125,000 for her past and future pain and suffering. Appellant also claims that her injury resulted in lost earnings of $9,500 and its permanent nature would reduce her earning capacity in the future by $100,000.

The jury found that appellant did sustain "an injury" that was a result of the negligence of both parties in this lawsuit. The jury held that 80 percent of the negligence of this accident was attributable to the appellee. In Special Issue No. 7, the jury was asked only one question on damages--to determine what total sum of money would compensate appellant for her injuries.

For clarification of discussion upon the matter of damages, a photo duplicate of Special Issue No. 7 as given in the court's charge along with the jury's answer is provided below. The handwritten notations in issue in this case are found in the right-hand margin of this special issue along side the elements of damages that the jury was instructed to consider.

ISSUE NO. 7

Find from a preponderance of the evidence what sum of money,

if any, if paid now in cash, would fairly and reasonably

compensate Flora F. Mills for her injuries, if any,

resulting from the occurrence in question.

Consider the following elements of damages, if any, and

none other.

(a) Physical pain and mental anguish in the past. $1,333.00

(b) Physical pain and mental anguish that, in -0-

reasonable probability, she will suffer in

the future.

(c) Loss of earnings in the past. $4,000.00

(d) Loss of earning capacity that, in reasonable -0-

probability, she will sustain in the future.

(e) Medical expenses in the past. $5,292.00

You are to consider each element of damages separately, so as not to include damages for one element in any other element.

Answer in dollars and cents, if any.

ANSWER: $ 10,625.00

---------------------------- In her first point of error, appellant asserts that the trial court abused its discretion by failing to consider the handwritten notations in the margin of the verdict as a part of the jury's response to the special issue on damages. 1 The question presented by appellant is whether these notations constitute a part of the jury's answer and thereby become a part of the verdict. If these handwritten notations on the separate elements of damages in this case can be considered as part of the verdict, then the appellant argues that each is manifestly too small and inadequate and each is reviewable on appeal.

This court holds that the handwritten notations in the margin of the jury charge do not constitute conclusive proof as to how the jury arrived at its total damages answer. See Richardson v. Walters, 311 S.W.2d 268, 270 (Tex.Civ.App.--Fort Worth 1958, no writ). As a consequence, there was no abuse of discretion by the trial court in not considering these notations and the separate elements of damages indicated by these notations cannot be considered on appeal.

The issue presented to the court in the Richardson v. Walters case is nearly identical to that presented in this point of error. In Richardson, the jury charge contained a broad special issue on damages incorporating six distinct damage elements but only providing for one answer as to the total amount of damages to be awarded. 311 S.W.2d at 269. Some member of the jury had written in the margin of the charge "none" besides four of the damage elements and certain dollar amounts besides the other two elements. The handwritten notations added to equal the total that the jury awarded in its answer to this special issue. In ruling on the issue of whether these handwritten notations could be considered on appeal, Chief Justice Massey wrote:

We are of the opinion that the notations tend to warrant the conclusion [that the jury elected to provide awards for only certain elements of damages in reaching its answer on total damages], but we are of further opinion that as evidence it is not such as constitutes in and of itself proof to be given cognizance by the court. Furthermore, we are of the opinion that if it should be given consideration as evidence, it would certainly not amount to conclusive proof that the jury, as part of its unanimous act, arrived at its answer by adding the two sums together.

Richardson, 311 S.W.2d at 270. Chief Justice Massey went on to hold:

From what we have already said, it follows as a matter of course that there is no proof of exactly which elements the jury took into consideration in arriving at the answer it returned. We cannot speculate upon how the jury arrived at the answer, nor can we assume that it found damages as to some elements and none as to others, or that it found some damages as to each element.

Id.

In the case before this court, it is equally clear that there is a strong inference that the handwritten notations addressing the separate elements of damage were the basis for the jury's total damage award as they add up to equal this total. Nonetheless, it would be speculation on our part to assume that the notations represent the jury's actual answers. At most, the handwritten notations in the jury charge in this case represent the "mental process" by which the jury reached its verdict. The mental process by which the jury determined the amount of the verdict is ordinarily not cognizable by an appellate court. Johnston Testers v. Rangel, 435 S.W.2d 927, 933 (Tex.Civ.App.--San Antonio 1968, writ ref'd n.r.e.). The jury's reasons for reaching a particular verdict, as noted by the jury in an a handwritten footnote notation to their verdict, are irrelevant, at least in the absence of some overt act of misconduct. First National Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 678 (Tex.1969).

In support of her contention that the handwritten notations are part of the verdict, appellant cites Wanda Petroleum Co. v. Reeves, 385 S.W.2d 688 (Tex.Civ.App.--Waco 1964, writ ref'd n.r.e.). In Wanda, the jury failed to fill in the blank provided for the special issue on damages. Instead, handwritten notations were entered on the margin of the charge next to the instructions under the damage issue. Additionally, a conflicting...

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