Pate v. Tellepsen Const. Co.
| Decision Date | 17 January 1980 |
| Docket Number | No. 17486,17486 |
| Citation | 596 S.W.2d 548 |
| Parties | Edwin B. PATE, Jr., Appellant, v. TELLEPSEN CONSTRUCTION COMPANY et al., Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Fulbright & Jaworski, William W. Vernon and Daniel K. Hedges, Houston, for Tellepsen Construction Company and Warrior Constructors.
W. Jiles Roberts, Houston, for Edwin B. Pate, Jr.
Wohlt & Williams, E. J. Wohlt, Jr., Houston, for General Supply Co.
Ross, Griggs & Harrison, H. Lee Lewis, Jr., Bryan A. Domning, Houston, for Pierce, Goodwin, Alexander.
Clawson & Jennings, Max H. Jennings, Houston, for Ideal Engineering, Inc.
Mills, Shirley, McMicken & Eckel, Russell B. Serafin, Galveston, for Bernard Johnson Engineers, Inc.
Hicks, Hirsch, Glover & Robinson, Iris H. Robinson, Houston, for Jacobe-Underwood, Inc.
Wyckoff, Russell, Dunn & Frazier, Clare Steadham Hirling, Houston, for The Trane Co.
Law Offices of C. Ed Carrithers, C. Ed Carrithers, Houston, for Continental Casualty Co.
Before PEDEN, EVANS and WARREN, JJ.
The plaintiff, Edwin B. Pate, Jr., brought this personal injury action, alleging that he had been injured by a fluorescent light fixture and supporting framework which fell from the ceiling while he was working at his desk in a downtown office building. In response to a jury's verdict, the trial court entered a judgment awarding damages to Pate, individually and in trust for the intervenor, Continental Casualty Company, in the amount of $10,000, against defendants, Bernard Johnson Engineering, Inc.; George F. Pierce; Able B. Pierce; Pierce, Goodwin and Flanagan; Ideal Engineering, Inc.; and Tellepsen Construction Company and Warrior Constructors, Inc., a joint venture. The trial court denied a crossclaim for indemnity and contribution brought by Tellepsen-Warrior against a third party defendant, General Supply Company, Inc. Both Pate and Tellepsen-Warrior appeal from the trial court's judgment.
Pate was injured on November 5, 1970, and was immediately taken to see Dr. Keith Chunn, who examined him and placed him in the hospital for traction therapy in January of 1971. Pate continued to see Dr. Chunn until he was referred, in April of 1972, to Dr. Richard Hirshberg, a neurosurgeon. Dr. Hirshberg, called as a witness for Pate, testified that he had found no objective evidence of spinal cord injury or nerve root depression, but that Pate had complained of severe pain with different positioning of his head and neck. Dr. Hirshberg next saw Pate in May 1972, and at that time he prescribed two weeks rest, finding Pate to be extremely anxious, working excessive hours and under great strain. In August 1973, approximately three years after the accident, Dr. Hirshberg performed a laminectomy on Pate's neck and found evidence, at many levels, of a severe preexisting arthritic condition. Dr. Hirshberg testified that this operation was successful and that when he subsequently saw Pate in September 1973, he was doing extremely well and was without symptoms. Dr. Hirshberg later saw Pate in April 1974, and at that time Pate complained of his previous symptoms with respect to his neck, shoulder and upper extremity. However, on a subsequent visit in January 1977, Pate told Dr. Hirshberg that he was in no pain and complained only of a stiffness in his neck.
The special issues submitted to the jury and the jury's response thereto are as follows:
SPECIAL ISSUE NO. 1
Find from the preponderance of the evidence whose negligence, if any, caused the accident in question on November 5, 1970.
If you find some negligence to any party, then find if such negligence, if any, was a proximate cause of the accident in question. Questions should be answered "Yes" or "No" in the appropriate blanks.
Tellepsen-Warrior Yes Yes
Pierce-Goodwin & Alexander Yes Yes
Bernard-Johnson, Inc. Yes Yes
Ideal Engineering, Inc. Yes Yes
Jacobe-Underwood No No
General Supply Yes Yes
None of the above - - - -
Find from a preponderance of the evidence the date of substantial completion of the construction of the Houston Bank & Trust Building.
Answer by stating the date:
Answer: 25 January 1967
What sum of money, if any, if now paid in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Edwin Pate for his injuries, if any, which you find from the preponderance of the evidence resulted from the occurrence in question? You may consider the following elements of damage, if any, and none other.
Answer in dollars and cents, if any. ANSWER:
A. Physical pain and mental anguish in
the past $10,000
B. Physical pain and mental anguish
which, in reasonable probability, he will
suffer in the future -0-
C. Loss of earnings in the past -0-
D. Loss of earning capacity which, in
reasonable probability, he will sustain
in the future -0-
Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that you find from a preponderance of the evidence that such other condition, if any, was aggravated by the injuries, if any, which resulted from the occurrence in question.
Find from the preponderance of the evidence the reasonable expenses, if any, for necessary medical care received by Edwin Pate in the past for treatment of his injuries resulting from the occurrence in question.
Answer in dollars and cents, if any.
Answer: -0-
What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would be compensation for the reasonable expenses, if any, necessary psychiatric and/or psychological care which Edwin Page will, in reasonable probability, require in the future for treatment of his injuries resulting from the occurrence in question?
Answer in dollars and cents, if any.
Answer: -0-
In his amended brief Pate challenges only the legal and factual sufficiency of the evidence to support the jury's findings of zero damages with respect to his claim of loss of past earnings, loss of future earning capacity, and for his claimed past and future medical expenses. He does not challenge the jury's findings with respect to past and future physical pain and mental anguish, nor does he make any specific argument concerning the jury's failure to find future medical expenses.
Pate argues that the undisputed evidence shows that he was required to be away from work because of his injury, at least during the period of time he was hospitalized, and that prior to the accident, he had a good work attendance record with appropriate raises in pay and none afterward. He also contends that the uncontroverted testimony of his economist witness established that he had a loss of income from the time of injury until the date of trial in at least the amount of $18,807.91.
Pate did not offer evidence which did more than raise a fact issue for the jury as to whether he had lost wages for time missed from work as a result of the accident and whether he would incur expenses for medical treatment in the future. By Pate's own admission, he continued to work for his employer for a period of two years after the accident and until he was fired in April 1973, for a cause unrelated to the accident. There was also evidence indicating that Pate's earnings had increased from $925 per month in April 1973, when the accident occurred, to $1225 per month in 1976. Thus, the jury was at liberty to conclude that there was not a preponderance of the evidence in favor of Pate's claim for past loss of earnings and for loss of future earning capacity. There was no evidence of the amount of medical expenses, if any, which Pate would have to incur in the future.
There was, however, evidence of past medical expenses attributable to the accident which the jury was not at liberty to ignore....
To continue reading
Request your trial
-
Burk Royalty Co. v. Walls
...554 (Tex.1972); Haas Drilling Co. v. First National Bank, 456 S.W.2d 886, 889 (Tex.1970); Pate v. Tellepsen Const. Co., 596 S.W.2d 548 (Tex.Civ.App. Houston (1st Dist.) 1980, writ ref'd n. r. e.); Partida v. Park North General Hospital, 592 S.W.2d 38, 39-40 (Tex.Civ.App. Beaumont 1979, writ......
-
In re ContiCommodity Services, Inc. Securities Lit.
...This claim, however, is premature since David Ragan has not yet been found liable in any action. Pate v. Tellepsen Construction Co., 596 S.W.2d 548, 552 (Tex.Civ.App. 1980); Forty-Eight Insulations, Inc. v. Johns-Manville Products Corp., 472 F.Supp. 385, 393 (N.D.Ill.1979). Moricoli v. P & ......
- Arguello v. Gutzman
-
Ingersoll-Rand Co. v. Valero Energy Corp.
...at 750; Holland v. Fidelity & Deposit Co., 623 S.W.2d 469, 470 (Tex. App.-Corpus Christi 1981, no writ); Pate v. Tellepsen Constr. Co., 596 S.W.2d 548, 552 (Tex. Civ. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.); Bernard, 532 S.W.2d at 410; Texas Auto Servs., Inc. v. Kemp, 478 S.W.2d 6......