North Houston Pole Line Corp. v. McAllister, A14-82-890CV

• Decision Date: 22 December 1983
• Docket Number: No. A14-82-890CV,A14-82-890CV
• Citation: 667 S.W.2d 829
• Parties: NORTH HOUSTON POLE LINE CORP., et al., Appellants, v. Terry Rachal McALLISTER, Appellee, (14th Dist.)
• Court: Texas Court of Appeals

Page 829

667 S.W.2d 829

NORTH HOUSTON POLE LINE CORP., et al., Appellants, v. Terry Rachal McALLISTER, Appellee,

No. A14-82-890CV.

Court of Appeals of Texas Houston (14th Dist.).

Dec. 22, 1983.

Rehearing Denied Jan. 19, 1984.

Alice M. Giessel, Henry P. Giessel, Talbert, Giessel, Stone, Barker & Lyman, Houston, for appellants.

Hal Upchurch, John O'Quinn & Associates, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

OPINION

ELLIS, Justice.

Appellants, North Houston Pole Line Corp., et al., appeal an automobile accident personal injury judgment against them in favor of appellee, Terry McAllister. The trial court submitted issues to the jury on actual damages and punitive damages, including an issue on the gross negligence of North Houston Pole Line Corp. The jury found $245,288.88 actual damages, $50,000 punitive damages against appellant, Benton, the driver, and $250,000 against appellant, North Houston Pole Line Corp., his employer. We agree and affirm.

Appellants bring nineteen points of error on appeal. Points of error eleven through nineteen relate to the trial court's judgment of actual damages. Points of error eleven, twelve and thirteen allege that 11) there was no evidence to support submission of an issue to the jury on loss of future earning capacity; 12) there was no evidence to support the jury verdict of $72,000 on that issue and; 13) because the evidence on that issue was insufficient, the excessive jury award must have resulted from passion, prejudice or other improper motive and this court should order remittitur.

Points of error fourteen through nineteen complain of insufficient evidence to support the excessive jury award, and therefore, jury passion, prejudice or other improper motive and call for remittitur on the issues of: 14) past physical pain and mental anguish, 15) future physical pain and mental anguish, 16) past loss of earnings, 17) past physical impairment, 18) future physical impairment and 19) future medical expenses.

Points of error one through six relate to the judgment of punitive damages against North Houston Pole Line Corp. Point of error one complains that there was no evidence to support submission of a jury issue on gross negligence. Point of error two alleges that there was no evidence to support the jury's response to that issue of $250,000 exemplary damages. Point of error three complains about the way this issue was worded. Appellants claim that the conjunctive language of negligent hiring and negligent entrustment resulted in an improper jury finding. Point of error four calls for an issue on whether North Houston Pole Line Corp., in the exercise of ordinary care, should have known that Benton was an incompetent driver. Points of error five and six complain that the evidence was factually insufficient to support a finding of gross negligence, and that therefore, the excessive jury verdict resulted from passion, prejudice or other improper motive and this court should order remittitur.

Finally, points of error seven through ten relate to the judgment of punitive damages against Benton, the driver and employee of North Houston Pole Line Corp.: 7) that the trial court erred in submitting an issue on Benton's gross negligence; 8) that there was no evidence to support the jury's verdict of $50,000 in response to this issue; 9) that the evidence was factually insufficient to support this jury finding and; 10) that this verdict resulted from passion, prejudice or other improper motive and this court should order a remittitur.

Earl Benton was hired by North Houston Pole Line Corp. on February 17, 1981. North Houston claimed that it hired Benton as a manual laborer and later promoted him to driver. Benton, however, testified that he was hired as a driver and that position was the main reason he went to work for North Houston Pole Line Corp. Before he was hired, Benton was interviewed by Earl Austin. Benton did not remember if Austin asked him about his experience of qualifications for driving a truck, or whether Austin asked to see his driver's license. Austin did not ask if Benton had any traffic tickets. Benton said he had driven a truck for Hofler Furniture Rental for four months.

In fact, Benton only worked for Hofler two months, never drove a truck for them and had received at least five speeding tickets in the previous year and a half. Benton's only truck driving training was self-taught.

About one week after Benton began driving a truck for North Houston Pole Line Corp., during rush hour, Benton, going about 50 miles per hour, drove North Houston's 9,000 pound truck with a trailer loaded with telephone poles into the rear of Appellee Terry McAllister's car. Just before the accident, Benton drove over a hill, created by a loop 610 overpass, about 3/10 of a mile away from where appellee and other cars had stopped for traffic. Benton, instead of stopping or slowing, began to try to change lanes. About ten feet before he collided with the car behind appellee, Benton tried to swerve across two lanes, from the lane to appellee's left to the open lane on her right. Benton hit the car behind appellee's and knocked it across two lanes and off the freeway. Benton then hit appellee's car and knocked it into another lane. Benton was issued a traffic ticket for negligent collision. Appellee's personal injuries included two cracked teeth, four cracked fillings, injuries to cervical muscles and the seventh cervical nerve, which required two hospitalizations, EMG testing, a myelogram, physical therapy, traction and medication for pain and muscle relaxation. She still has pain in her neck, right arm and forearm and numbness and weakness in her hand, which impairs movement and limits her ability to lift objects. The accident caused her to lose two jobs and has reduced her employment potential from a computer librarian to a receptionist.

After the accident, Benton claimed that his brakes had failed. He testified that a mechanic from North Houston Pole Line Corp. had fixed the brakes at the accident scene, but the mechanic testified that the brakes had worked fine and that he drove the truck back to the shop without difficulty. The investigating officer testified that there was no brake failure.

Benton admitted that he did not know how much his truck and trailer weighed empty or loaded or how long it would take to stop it; however, he admitted that this information would be crucial to driving the truck safely.

Austin, who hired Benton, gave conflicting answers when asked if he would have let Benton drive if he had known about Benton's speeding tickets. On deposition, he said he would not have let Benton drive. At trial, he said he would have let Benton drive 1) if the tickets were not recent (Benton's five tickets had all been received during the past year and a half), 2) because the trucks were too large to speed and 3) because it is hard to find drivers with commercial licenses. Austin let Benton drive again after the accident without giving him a road test, because he believed an accident is not serious unless someone is run over or a driver is charged with drinking.

Generally, we will not disturb a jury finding based on the ground of excessiveness if there is any probative evidence to support the award. T.J. Allen Distributing Co. v. Leatherwood, 648 S.W.2d 773 (Tex.App.--Beaumont 1983, writ ref'd n.r.e.). The appellate court will not substitute its judgment for that of the jury unless the record indicates the award resulted from the jury's passion, prejudice or improper motive. If, after reviewing the evidence, the court finds the award so excessive as to shock the conscience of the court, a remittitur is proper. International Harvester Company v. Zavala, 623 S.W.2d 699 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.); Armellini Exp. Lines of Florida v. Ansley, 605 S.W.2d 297 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.).

Points of error eleven, twelve and thirteen complain about the jury's finding of $72,000 actual damages for loss of future earning capacity. Appellants allege that there was no evidence to support the submission of this issue to the jury and that the evidence was insufficient to support the jury's finding. We disagree. Appellee's doctor testified that she would continue to have problems with pain and numbness in her neck and arm related to her degree of activity. Appellee's injuries prevented her from working as a computer librarian, her previous job at which she made $11,400 a year. She was still able to work as a receptionist making more than $1,800 less per year. She was unemployed at the time of trial and there was no assurance that she would get a receptionist job within the foreseeable future or that she would retain such a job.

At 27 years old, appellee had a work-life expectancy of 38 years (until age 65). The evidence was sufficient to support the jury finding of $72,000 for loss of future earning capacity. ($72,000 divided by 38 years = $1,895 per year). We overrule points of error eleven, twelve and thirteen.

Points of error fourteen and fifteen allege that the evidence was insufficient to support the jury findings for past and future suffering and mental anguish. Appellee's doctor testified that she was hospitalized twice and had to undergo traction and many painful and dangerous tests. Even after she went back to work, she still had pain in her shoulder, right arm and hand. It was painful for her to lift things and drive a car. The doctor testified that she would continue to have pain in her neck, shoulder and right arm and numbness in her right hand. He said it would improve to some degree but she would continue to have problems for some time. Dr. Rashti testified that appellee had suffered cervical whiplash and nerve injury.

Damages for pain, suffering and mental anguish are peculiarly a jury question because they are difficult to assess. City of Houston v. Moore, 389...