Moore v. Ellis, 84

• Decision Date: 06 October 1966
• Docket Number: No. 84,84
• Citation: 408 S.W.2d 724
• Parties: John I. MOORE and H. R. Wardlaw, d/b/a Red Town Farm et al., Appellants, v. Harold ELLIS, a Minor, by Next Friend, A. G. Ellis et al., Appellees. . Tyler
• Court: Texas Court of Appeals

Page 724

408 S.W.2d 724

John I. MOORE and H. R. Wardlaw, d/b/a Red Town Farm et al Appellants, v. Harold ELLIS, a Minor, by Next Friend, A. G. Ellis et al Appellees.

No. 84.

Court of Civil Appeals of Texas Tyler.

Oct. 6, 1966.

Supplemental Opinion Oct. 20, 1966.

Rehearing Denied Nov. 3, 1966.

On Motion to Re-Tax Costs Nov. 3, 1966.

Second Rehearing Denied Dec. 1, 1966.

Donald Carroll, Michael A. Hatchell, Ramey, Brelsford, Flock & Devereux, Tyler, Luther Johnston, Johnston & Johnston, Palestine, for appellants.

George E. Pletcher, Albert P. Jones, Helm, Jones & Pletcher, Houston, John B. McDonald, B. R. Reeves, Palestine, for appellees.

DUNAGAN, Chief Justice.

This is the second time this appeal has been before this court for consideration. Our former opinion is reported in 385 S.W.2d 261 and the opinion of the Supreme Court in 401 S.W.2d 789.

This is a suit for personal injuries arising out of an accident in which a tractor furnished by appellants turned over on Harold Ellis and seriously disfigured him. Trial was to a jury, resulting in a judgment on a jury verdict for the plaintiffs for $126,500.00.

The nature, character and facts of the case are fully stated in the opinions of both this court and the Supreme Court. The opinion and mandate of the Supreme Court finally disposed of the first nine points presented by appellants in their brief, and the case was remanded for this court to pass on the other points raised by appellants which had not been disposed of by our former opinion.

Appellants' original brief presented 79 points of error. Subsequent to the remand of this case by the Supreme Court, with permission of this court the appellants filed a post-submission brief in which they only present and argue four of the points heretofore presented in their original brief.

As stated by the Supreme Court in its majority opinion, many issues of contributory negligence were given, each of which Harold was acquitted by the jury.

The first point in appellants' post-submission brief is the contention that the trial court erred in overruling their motions for instructed verdict and for judgment n.o.v., because the evidence establishes as a matter of law that the plaintiff, Harold Ellis, was guilty of contributory negligence. This contention is overruled.

This point presents to this court for its determination strictly a question of law. As we understand the Supreme Court's opinion in this case, it determined this question of law adversely to appellants' contention. The decision and judgment of the Supreme Court is the law of this case on this question, and cannot be overturned here. MacDonald v. Follett, 193 S.W.2d 287, (Tex.Civ.App.) 1946, writ ref. However, if we be in error in our interpretation of the Supreme Court's opinion, then in that event, under all of the facts and circumstances of the case as shown by the record, we have concluded as a matter of law that the danger was not one which was so open and obvious that we would charge Harold with knowledge and appreciation of it, or that by the exercise of ordinary care he should have known and appreciated the danger involved, which is necessary before an injured person can be charged with contributory negligence. Jordan v. City of Lubbock, 88 S.W.2d 560, 563, (Tex.Civ.App.) 1935, writ dism.; Brownsville Navigation District v. Valley Ice & Fuel Company, Inc., 313 S.W.2d 104, 107, (Tex.Civ.App.) 1958, n.w.h.; Kenny v. El Paso Electric Company, 371 S.W.2d 777, 780 (Tex.Civ.App.) 1963, writ ref., n.r.e.

Included in the 79 points of error in appellants' original brief not heretofore passed upon are assignments that there was no evidence to support the answers to many of the special issues and further the answers to such issues were against the great weight and preponderance of the evidence and were supported by insufficient evidence. In passing on whether this is true of the jury's answers, we must review all of the evidence. After carefully considering and reviewing the entire record in this case, in light of the rules announced in the case of In re: King's Estate, 150 Tex. 662, 244 S.W.2d 660, we have reached the conclusion that we cannot say, in the light of the whole record, that the answers of the jury were so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. We, had we been jurors, might have reached a different result, but as a reviewing court we may not merely substitute our views for those of a jury. Before we can disturb the jury's answers, we must be able to say they are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong. Ashman v. Smith, 389 S.W.2d 509, 512, (Tex.Civ.App.) 1965, n.w.h. We also find the evidence sufficient to support the jury's findings. These points of error are overruled.

Special Issue No. 37 inquired of the jury what sum of money would compensate the parents of Harold Ellis for the following:

(a) Loss of services of the plaintiff until age 21, and

(b) The medical expenses to be incurred on behalf of the plaintiff from the date of trial to his twenty-first birthday.

The jury found that the parents had sustained a loss of services in the amount of $2,500.00, which is unchallenged by the appellants as being excessive. The jury then awarded $24,000.00 for future medical expenses. This latter figure is challenged by the appellants as being excessive and erroneous because it is grossly in excess to all the medical testimony relating thereto.

The only evidence relating to medical expenses for Harold from the date of trial to the plaintiff's twenty-first birthday was given by appellees' witness, Dr. LeRoy Mathis, Jr. The doctor testified that the reasonable and necessary charges involved in operations for Harold would be a $500.00 fee for each operation, a $500.00 hospital and drug fee for each operation, and $50.00 for office visits after his discharge following each operation. Dr. Mathis further testified that there was a reasonable medical probability that there would be required or necessary for the restoration of Harold from 15 to 25 procedures. As we understand his testimony, it was his best judgment that it could be done with 20 surgical procedures. He also testified that these operations or procedures could not be conducted but once every three months at the minimum. This would mean that Harold would undergo a maximum of four operations per year from the date of trial to his twenty-first birthday.

Taxing the figures given by Dr. Mathis and computing the medical bills which would occur between the date of trial and Harold's twenty-first birthday, allowing $1,050.00 as the reasonable expenses for each operation or procedure, then, on the basis of four operations or procedures per year for the three years from the date of trial (November 4, 1963) until Harold's twenty-first birthday (September 29, 1966) the maximum amount, under the evidence presented by Dr. Mathis, which could be allowed for medical expenses prior to plaintiff's twenty-first birthday, is $12,600.00.

Appellees recognize that under the above evidence the award of future medical expenses to Harold's parents is excessive and urge this court 'to reform the judgment to provide that $11,400.00 in reasonable medical expenses which will be incurred following Harold's twenty-first birthday, be added to his recovery.' Appellees cite no authority nor are we aware of any that would support such action by this court. It is the rule in Texas that a parent is liable for the medical expenses of his child, ...