Nickel v. Snider

• Decision Date: 07 September 1972
• Docket Number: No. 695,695
• Citation: 484 S.W.2d 940
• Parties: Mrs. Edna NICKEL, Appellant, v. T. H. SNIDER, Administrator of the Estate of Charles K. Snider, Deceased, Appellee.
• Court: Texas Court of Appeals

Page 940

484 S.W.2d 940

Mrs. Edna NICKEL, Appellant, v.T. H. SNIDER, Administrator of the Estate of Charles K Snider, Deceased, Appellee.

No. 695.

Court of Civil Appeals of Texas Corpus Christi.

Sept. 7, 1972.

Rehearing Denied Oct. 5, 1972.

Lyman & Sudduth, Charles G. Lyman, Corpus Christi, for appellant.

O. F. Jones, Victoria, for intervenorTexas Farm Bureau Ins. Co.

Lawrence A. Dio, Fred P. Turner, Port Lavaca, for appellee.

OPINION

NYE, Chief Justice.

This is a suit for damages resulting from an automobile collision at an intersection.Trial was before the jury resulting in a judgment for the plaintiff.The defendant appeals.

Plaintiff, Charles K. Snider, was proceeding west on State Highway 35 west of Port Lavaca.The defendantappellant was travelling north on Farm to Market Road 2433.The intersection is controlled by a blinking yellow light on Highway 35 and a blinking red light and stop sign guarding the Farm to Market Road.The collision occurred in the intersection.The jury found that the defendant failed to yield the right of way and failed to keep a proper lookout, both of which were a proximate cause of the collision.It awarded $7,000.00 to the plaintiff for loss of wages and for pain and suffering.In addition, the judgment included $933.15 for medical expenses and $894.50 for property damages, which latter sums were stipulated by the parties.The jury exonerated the plaintiff from contributory negligence in issues inquiring as to proper lookout, speeding, headlights and application of brakes.

The appellant's first three points of error concern the jury's answer to the damage issue in which the jury found that the plaintiff had been damaged in the amount of $7,000.00 for pain and suffering and loss of earnings.The plaintiff died five months before the trial of causes unrelated to the collision in question.His father, as administrator, was substituted as plaintiff.The special issue inquired as to the amount of damages due the plaintiff'from the date of the collision to the date of his death'.There was no evidence as to the actual time Charles Snider died.Appellant contends in her first three points that the trial court erred in rendering judgment for any amount other than the stipulated damages and should have declared a mistrial and awarded defendant another trial.

The appellant made no objection to the damage issue.Rule 272,Texas Rules of Civil Procedure, provides that any objection to the court's written charge shall be presented to the court in writing before the charge is read to the jury and that any objections not so made and presented shall be waived.Appellant argues here, that her claim that the evidence was insufficient to warrant the submission of the issue is a type of an objection that may be made for the first time after the verdict is returned.She further contends that she can make such complaint (to disregard the issue) without objection to the submission of the issue.Citing Rule 301, T.R.C.P.This would be correct if there was no evidence of any damages.SeeIngram v. Texas Industries, Inc., 396 S.W.2d 423(Tex.Civ.App.--Ft. Worth 1965, n.r.e.);C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191(Tex.Sup.1966).

Since the actual date of the death of Charles Snider was not established, a proper objection to the submission of the issue as worded would have been in order.Either the trial court would then have been required to re-open the case and receive evidence as to the date of death, or the damage issue would have had to be reworded to limit the damages from the date of accident until the date that Charles Snider's deposition was taken, some eight months after the accident.However, since no objection was made to the issue, the error is deemed waived if there is some evidence of the damages.Rule 272, T.R.C.P. J. M. Dellinger, Inc. v. McMillon, 461 S.W.2d 471(Tex.Civ.App.--Corpus Christi 1970, n.r.e.).It is true that the award of damages must be based on some competent evidence and not on mere conjecture.McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710(1943).However, where there is some evidence of damages, the amount of the award must be left to the sound judgment and discretion of the jury.We must, of course, view the evidence in the most favorable light to the award.We cannot substitute our judgment for that of the jurors.

The evidence here clearly shows that Charles K. Snider was severely injured.He had two breaks in his leg; a severe compound fracture of his right leg with the leg bent in an angle.He suffered a mild cerebral concussion, lacerations to the face, abrasions and contusions, and was in severe pain.He remained in the hospital over two weeks and the doctor testified that he appeared to be in pain.A cast remained on his leg in excess of four months.The medical expenses that were stipulated to were over $900.00.He was gainfully employed prior to the accident, with a take-home pay of about $80.00 per week.Earlier he had been earning close to $100.00 per week.The evidence was undisputed that he was unable to work from the date of the accident, that is February 21, 1970, until the date of the deposition, October 29, 1970.Appellant does not complain of the excessiveness of the award.We therefore hold that the evidence was sufficient to support the verdict.Garza v. Alviar, 395 S.W.2d 821(Tex.Sup.1965).These points are overruled.

The appellant's next series of points relate to the trial court's refusal to admit into evidence an unsworn signed statement taken from the deceased plaintiff, Charles K. Snider, shortly after the accident by an insurance adjuster.The offered statement contradicted in a minor way Charles K. Snider's testimony which he made in his deposition.We conclude that the trial court was in error in refusing to admit the statement into evidence.However, we cannot say that the excluded testimony would have in all reasonable probability resulted in a jury verdict on which a judgment for the appellant could have been rendered.Duncan v. Smith, 393 S.W.2d 798(Tex.Sup.1965).

The only testimonial value that the offered statement might have would be relative to the contributory negligence issue of proper lookout.There were only two witnesses to the accident--the deceased, Charles K. Snider, and the defendant.The testimony from the defendant was that she was approaching the intersection at a speed of approximately 40 miles per hour.She admitted to the officer who investigated the accident that she had been drinking.The officer testified that he found a broken whiskey bottle in the car.The defendant's passenger suffered amnesia and was unable to recall any of the events of the accident.The appellant remembered a sign warning her of a stop signal ahead.She testified that there was a red blinking light at the intersection and a stop sign commanding her to stop.She testified that she stopped at the intersection.She proceeded into the intersection.She was asked the following question: 'Do you recall as to when you did first see it?'(the plaintiff's vehicle).She answered: 'When it hit me.'Later she testified that she always looked just 'straight ahead'.The jury convicted the defendant of failure to keep a proper lookout and a failure to yield the right of way to the plaintiff's vehicle, which acts of negligence were found to be a proximate cause of the collision.

The plaintiffCharles K. Snider testified as follows:

'Q What is the last thing that you remember before the collision?

A I remember seeing her coming and I tried to miss her and I turned my steering wheel, and that's all I can remember.

Q You turned your steering wheel in what direction?

A To the right.

Q And you say you saw her coming?

A Yes, sir.

Q Where was she?

A I don't remember where she was at.

Q Was she in the intersection?

A No, sir.

Q Was she to your left or to your right?

A She's be to my left.

Q And was she back of the intersection then?

A Well, as far as I can remember, the first time I seen her she was.

Q About how far away from the intersection was she?

A I wouldn't know.

Q How fast was she going?

A I couldn't say. . . .'

Snider did not testify that the defendant stopped at the intersection.The statement given by Charles K. Snider to the insurance adjuster prior to the taking of the deposition, which was not admitted into evidence, stated in part:

'. . . I looked to both the right and the left as I approached the intersection.I did not see a car coming from either the left or the right.I never saw the other car at all until it was already in the intersection.At that time I was just about under the flashing light.I did not have time to hit my brakes at all.I did manage to cut to the right a little but I just didn't see the other car until it was too late. . . .'

The attorney for the appellant introduced into evidence the following part of Snider's deposition which relates to the above statement:

'Q All right.Did you ever tell anyone that at that time when you first saw the other car you were just about under the flashing light?

A I don't know.

Q Did you ever sign a statement to that effect?

A I signed a statement but--

Q Did you ever tell anyone that you just didn't see the other car until it was too late?

A I don't remember really.

Q You don't deny having said that, do you?

A No, I won't deny it.'

The appellant argues that the statement was admissible as either an admission or a declaration against interest and in any event it should have been admitted for the purpose of impeachment.We agree that the statement should have been admitted for its testimonial value concerning the issue of proper lookout.Duncan v. Smith, supra;Taylor v. Owen, 290 S.W.2d 771(Tex.Civ.App.--San Antonio 1956, n.r.e.).A review of all the evidence in the record, including the slightly contradictory statements made in the written statement to the adjuster, convinces us that even if the jury could have found from all of the evidence,...