Port City Lumber Co. v. Markell
| Decision Date | 05 July 1928 |
| Docket Number | (No. 9191.) |
| Citation | 9 S.W.2d 449 |
| Parties | PORT CITY LUMBER CO. v. MARKELL et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Harris County; W. E. Monteith, Judge.
Action by Marielee Markell, a minor, by George Markell, as next friend, and by George Markell, for himself and his wife, Kate Markell, against the Port City Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
Fouts, Amerman, Patterson & Moore, of Houston, for appellant.
Levy, Levy, Barker & Kahn and Ansel M. Kahn, all of Houston, for appellees.
This suit was brought by Marielee Markell, a minor, by her father, George Markell, as next friend, and by George Markell, for himself and for his wife, Kate Markell, against the Port City Lumber Company, to recover damages alleged to have been suffered by the plaintiffs as the result of the negligence of the defendant in causing a collision of one of its trucks and the automobile in which Marielee Markell and Kate Markell were riding. The defendant answered by a general demurrer, a general denial, and plea of contributory negligence on the part of the plaintiffs.
The cause was submitted to a jury upon special issues, preceded by proper definitions of the terms "negligence," "ordinary care," and "proximate cause." In answer to the special issues, the jury found substantially that at the time of the collision the defendant's truck was being negligently driven on the left and wrong side of the highway and the intersection of two highways, and that such negligence was the proximate cause of the collision and the resulting injuries to plaintiffs; that Kate Markell, the driver of the plaintiffs' car, was not guilty of negligence contributing to the collision; that, if paid in cash at the time of trial, $250 would fairly and reasonably compensate Kate and George Markell for the mental pain and physical injury suffered by Kate Markell in the past as a result of her injuries, and that, if paid in cash at the time of trial, $100 would fairly and reasonably compensate said parties for such sums as they had expended for reasonable and necessary household services caused by the injuries suffered by Kate Markell in the collision; that, if paid in cash at the time of trial, $400 would fairly and adequately compensate Marielee Markell for the mental pain and physical suffering suffered by her as a direct and proximate result of the collision in the past, and such as she will reasonably and likely suffer in the future; and that, if paid in cash at the time of trial, $1,000 would fairly and adequately compensate her for mental anguish caused by disfigurement that she may reasonably and likely undergo in the future, by reason of the collision.
Upon the findings of the jury, judgment was rendered in behalf of Marielee Markell against Port City Lumber Company for $1,400, and in behalf of George and Kate Markell against said company for $350. Port City Lumber Company has appealed.
By its first, second, and third propositions, appellant attacks the sufficiency of the pleadings and proof made by the plaintiffs to support a recovery by Marielee Markell for mental anguish which she would suffer in the future by reason of disfigurement. We think the attack is without merit. We have carefully read the pleadings relative to the injuries of Marielee Markell, which were alleged to have disfigured her arm and collar bone, and the evidence adduced to sustain the same, and in our opinion both were sufficient to sustain a recovery for mental anguish because of her disfigured members.
The special issue No. 27, as submitted by the court, was as follows:
By its tenth assignment, appellant insists that:
"The court erred in submitting special issue No. 27 to the jury, inquiring, `What mental anguish, if any, caused by disfigurement, if any, the said Marielee Markell may reasonably and likely undergo in the future by reason of said collision, if you find the facts so to be,' for the reason that no disfigurement had been pleaded, nor had there been any pleading for mental anguish for said disfigurement, and there had been no proof of the same, or of any facts from which the same could be reasonably inferred, and for the reason that mental pain and physical suffering had been submitted in part (a) of said special issue No. 27, and the jury assessed double damages in the case."
And it now insists that the charge above set out authorized the jury to find double damages for the same thing.
We cannot agree with appellant that the charge authorized the finding of double damages. Subdivision (a) authorized a recovery for mental pain and physical suffering suffered by Marielee Markell in the past, and such as she might suffer in the future, while subdivision (b) authorized a recovery for mental anguish or distress suffered by reason of disfigurement only. But, if it be conceded that the charge was subject to the complaint made of it, we would not be authorized to reverse the judgment because of such error, in that appellant made no timely objection to the charge upon the ground that it authorized a recovery of double damages. The objection to the charge now urged was not stated in the objections made and filed in the trial court to the charge, but, so far as shown by the record, such objection was made for the first time in appellant's motion for a new trial filed 15 days after the rendition of the judgment.
By article 2185, Revised Civil Statutes of 1925, it is provided that:
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