Montandon v. Colehour

• Decision Date: 11 June 1971
• Docket Number: No. 17224,17224
• Citation: 469 S.W.2d 222
• Parties: Gene MONTANDON, Appellant, v. John Albert COLEHOUR, Appellee.
• Court: Texas Court of Appeals

Page 222

469 S.W.2d 222

Gene MONTANDON, Appellant, v. John Albert COLEHOUR, Appellee.

No. 17224.

Court of Civil Appeals of Texas,

Fort Worth.

June 11, 1971.

Rehearing Denied July 9, 1971.

Schattman, Mock & Guthrie, and C. Coit Mock, Fort Worth, for appellant.

Touchstone, Bernays & Johnston, and Webber W. Beall, Jr., Dallas, for appellee.

OPINION

BREWSTER, Justice.

This is a damage suit for personal injuries allegedly sustained in a rear-end automobile collision.

The appellee, Colehour, admittedly drove his car at a speed of between 20 and 25 miles an hour into the rear end of a car being operated by appellant, Montandon. At the time of impact Montandon was parked at an intersection waiting for a red traffic light to change. Colehour admitted that as he approached the point of impact he was looking down at his dashboard in an effort to adjust his car radio and that when he looked back up it was too late to prevent his car from colliding with the car Montandon was in.

The jury by its verdict found Colehour negligent in failing to keep a proper lookout, that such negligence proximately caused the wreck, and that Montandon sustained personal injuries as a direct result of the wreck. The jury answered the damage issue (No. 12) 'None,' and also found that Montandon did not reasonably and necessarily incur charges for medical services in the treatment of his injuries, and that he will not, in reasonable probability in the future, reasonably and necessarily incur charges for medical services in the treatment of such injuries.

Upon receipt of the verdict the trial court rendered judgment that Montandon take nothing by his suit and that he pay the court costs. Montandon, plaintiff below, has appealed from that judgment.

His Points Nos. 9, 10 and 11 are devoted to the contention that the jury's finding of 'None' to the damage issue, after it had found that Montandon did sustain personal injuries in the collision, was against the overwhelming weight and preponderance of the evidence, and that he was entitled to recover some amount of money for the personal injuries the jury found that he did sustain and that the judgment should be set aside for these reasons.

We sustain the contention that the jury's answer of 'None' to the damage issue was so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.

Issue No. 11 of the charge inquired: 'Do you find from a preponderance of the evidence that Gene Montandon sustained any personal injuries as a direct and proximate result of the occurrence in question?' The jury answered 'Yes.'

The charge then instructed the jury to answer Issue No. 12 only if they had answered Issue No. 11 'Yes.'

Special Issue No. 12 was as follows:

'What sum of money, if any, do you find from a preponderance of the evidence, if paid now in cash, would fairly and reasonably compensate Gene Montandon for the injuries, if any, which you believe from a preponderance of the evidence he sustained as a direct and proximate result of the occurrence in question?

'In answering this special issue you are instructed that you may take into consideration the following elements of damage, if any, and none other:

'(a) the physical pain, if any, and mental anguish, if any, which you believe from a preponderance of the evidence Gene Montandon has sustained since the date of the occurrence up to the present time as a direct and proximate result of the occurrence in question.

'(b) the physical pain, if any, and mental anguish, if any, which you believe from a preponderance of the evidence Gene Montandon, in reasonable probability, will suffer in the future and after this date as a direct and proximate result of the occurrence in question.

'(c) the reasonable cash value of loss of earning capacity, if any, which you believe from a preponderance of the evidence Gene Montandon has sustained from the date of the occurrence up to the present time as a direct and proximate result of the injuries, if any, received on the occasion in question.

'(d) the reasonable cash value of loss of earning capacity, if any, which you believe from a preponderance of the evidence that Gene Montandon, in reasonable probability will sustain in the future from and after this date as a direct and proximate result of the occurrence in question.

'(Here follows an instruction that is not material here relative to not considering medical bills in answering this issue.)

'Answer in dollars and cents, if any, or 'None'.'

The jury answered this issue 'None.'

On this occasion Montandon was driving a car owned by Jack Tarvin, Jr. Mr. Tarvin and his fiance were in the front seat of this car with Montandon at the time of the wreck, the fiance being in the middle.

Tarvin testified that this collision, occurring January 12, 1968, knocked his car half a city block; that the force of the impact caused his car to buckle in the middle; it caved the rear of the car in; and it caused the bucket seats in the car to break off and throw all three front seat occupants into the back seat; that following the wreck he went around to see about Montandon to help him over to sit on the curb but Montandon stated he did not feel like moving; that he had better kneel down where he was, so he did; the wreck occurred shortly after midnight and they took Montandon to Carswell Air Force Base Hospital in an ambulance and released him at about 2:30 A.M.; they did not sleep much that night; Montandon was pretty sick that night; Tarvin and Montandon were both then in service and under orders to report to Fort Dix, New Jersey, by midnight of the following night; they boarded a plane at 6:30 A.M. the next morning for Fort Dix; at Fort Dix Montandon complained of soreness and stiffness in his back and made the same complaints as they were flying from New York to Germany, 2 or 3 days after the collision.

The appellee, Colehour, testified that the collision knocked the front car half way through the intersection and that the streets were wet that night.

Appellee, Montandon, testified as follows: Before service he worked as field representative for an oil field supply company; this required driving in oil fields 3,000 to 5,000 miles a month; he made about $1,000 a month; he was in the hospital 2-1/2 hours that night; he became real sick and was throwing up just after the collision; he felt the same way when released from the hospital; by morning when he got to Dallas Love Field to board his plane his neck and shoulders had become completely stiff and he had developed a severe headache; nothing had been alleviated by the time he got to Fort Dix; he still was stiff and sick; he was still stiff and sick a few days later when they shipped him out to Germany; was sick at the stomach, his head hurt and neck was sore when he got to Germany; he did clerical work in the Army; he first saw a doctor in about December, 1968 (Dr. Priddy in Junction City, Kansas); his neck, shoulder, elbow and two fingers on right hand were bothering him then; neck was then stiff; right shoulder then seemed to crack and come out of joint; had a constant ache in his shoulder that seemed to go down the right arm into his hand; Dr. Priddy treated him for several weeks then; did not go back to the traveling job on getting out of service in August, 1969, because his neck and shoulder bothered him and he did not feel like he could do that work any more; he gets stiff, and has headaches; he entered court reporting school because that work was not strenuous; he testified the collision knocked him from between 30 to 40 feet into the intersection to all the way through it; he tried to consult a military doctor, but never did; between December 6, 1968 and trial time he saw Dr. Priddy about ten times and Dr. Renshaw two times.

The investigating officer testified that the car Montandon was in was knocked 68 feet by the impact.

Dr. M. F. Priddy, an osteopathic physician of Junction City, Kansas, testified as follows: He saw and treated Montandon first on December 6, 1968; he then complained of having pain in his right shoulder, right elbow, neck, and upper part of dorsal spine since being in the car wreck; examination revealed pain in mid-part of cervical spine on rotating the head with pain radiating into the right arm and shoulder; flexion of the cervical spine caused pain in mid-cervical area; internal rotation of right arm produced pain in right shoulder; flexion of right wrist was painful; palpation of dorsal spine revealed apparent capsulitis between 3rd and 4th vertebra; the right shoulder, right elbow, the cervical and dorsal spines were x-rayed; the x-rays showed a loss of normal curvature or alignment between the 3rd and 4th cervical vertebra and also showed an increased joint interspace in the right shoulder; his opinion was that straightening of the cervical spine was due to muscle spasm resulting from injury sustained in the collision and that the abnormality shown by the shoulder x-ray was due to loss of muscle tone caused by a severe strain of the muscle group received in the collision; this doctor treated him about 10 times and said his charge for the treatment was $135.00, which was reasonable and the services were reasonably required in the treatment of his injuries.

Dr. Charles Renshaw, an orthopedic specialist of Fort Worth, testified as follows: he first saw Montandon on March 3, 1970; he then complained of pain and stiffness in neck, fatigue in right arm, grating in the neck, a catch in the right shoulder, and pain in right wrist and hand; on examination he could feel the grating in the neck; he could also feel a hanging in the right shoulder on certain movements; x-rays he took of the neck showed a loss of the normal curvature of the cervical spine which loss is due to pain or muscle spasm that occurs where there has been an injury; shoulder x-rays he took showed an abnormal shoulder and he diagnosed Montandon's problems as a subluxing right shoulder...