R. E. Dumas Milner Chevrolet Co. v. Morphis, 16103

• Decision Date: 06 May 1960
• Docket Number: No. 16103,16103
• Citation: 337 S.W.2d 185
• Parties: R. E. DUMAS MILNER CHEVROLET COMPANY et al., Appellants, v. Oscar L. MORPHIS, Appellee.
• Court: Texas Court of Appeals

Page 185

337 S.W.2d 185

R. E. DUMAS MILNER CHEVROLET COMPANY et al., Appellants, v. Oscar L. MORPHIS, Appellee.

No. 16103.

Court of Civil Appeals of Texas, Fort Worth.

May 6, 1960.

Rehearing Denied June 17, 1960.

Brewster, Pannell, Leeton & Dean and Beale Dean, Fort Worth, for appellants.

Brown, Herman, Scott & Young and Ardell M. Young, Fort Worth, for appellee.

BOYD, Justice.

This is a suit against R. E. Dumas Milner Chevrolet Company and Marion Browning for damages for personal injuries sustained by Dr. Oscar L. Morphis, his minor son Stephen A. Morphis, and his minor nephew David Laird, when on August 29, 1957, an automobile owned and driven by Dr. Morphis collided with an automobile owned by the Chevrolet Company and driven by its employee Marion Browning. There was also a claim for damages to the Morphis automobile. International Service Insurance Company, which carried and paid collision insurance on the Morphis automobile, intervened and prosecuted its subrogation claim. Defendants admitted liability for damages actually sustained by plaintiffs. Recovery was awarded all the plaintiffs and the intervener, and defendants have paid all such awards except that for $23,500 for the personal injuries of Dr. Morphis. They paid his recovery for $1,629.35 for medical and hospital expenses. Defendants appeal from the judgment awarding Dr. Morphis recovery other than for the medical and hospital expenses.

Appellee is a medical doctor, specializing in the field of radiology. He is a partner in a radiological group, there being five other partners and an employed doctor. At the time of the accident, appellee was 39 years of age, and in active practice, earning in excess of $2,000 per month. According to his allegations, as a result of the collision he was totally disabled for more than four months; he sustained permanent partial disability; he suffered excruciating pain for about three months, and pain in a milder degree to the time of the trial, which will continue for an indefinite period. Appellants denied appellee's allegations concerning the extent and duration of his injuries and disability, and denied that his loss of personal earnings was substantial; alleged that his claim for damages was greatly exaggerated; but admitted that he was totally disabled for about two months and partially disabled for some further period, and that he had incurred $1,629.35 in medical and hospital expenses.

Appellants alleged that appellee continued to receive his proportionate share of the profits of the partnership. This allegation was stricken on exception, and on appellee's motion appellants were instructed to refrain from inquiring into that matter in the presence of the jury. This evidence was offered on the trial, and was excluded. By a group of fifty points, appellants exhaustively and ably present the contention that the exclusion of this evidence was reversible error.

The partnership agreement provided that if a partner were disabled he would receive his proportionate share of the profits for three months, and one-half of such share for the next six months. Appellee was actually paid his full share for the last four months of 1957. His participation in the partnership profits was shown for 1955, 1956, the first eight months of 1957, and 1958. His income tax returns for 1955, 1956, and 1958 were introduced. The 1957 return was offered by appellants but was excluded. The payment to appellee for the last four months of 1957 averaged nearly as much per month as for the first eight months of that year. There is no contention that appellants did not sufficiently tender the documents referred to, as well as other partnership records, including the partnership agreement, collectively, separately, by line and by item.

We think it would not have been proper to cut down appellee's recovery by the amount, or by any amount, paid to him by the partnership, whether in accordance with the contract, or as a gratuity. 13 Tex.Jur., pp. 180, 181, secs. 80, 81, 82, 83. We do not understand that appellants so contend. But they insist that such evidence was admissible on the extent and duration of appellee's disability, and was relevant to the general issue of damages, and to his loss of earnings and loss of earning capacity. They say this evidence would have aided that jury in deciding whether the reason appellee did not work more than he did was that he was drawing pay while not working, rather than because he was disabled from working. They cite Union Transports, Inc. v. Braun, Tex.Civ.App., 318 S.W.2d 927; McElwain v. Capotosto, 332 Mass. 1, 122 N.E.2d 901, and Congdon v. Howe Scale Co., 66 Vt. 255, 29 A. 253, to sustain their contention. The question is not free from difficulty, but we have reached the conclusion these points do not reflect reversible error.

In the Braun case a truck driver suing for damages for loss of time on account of injuries testified that he was incapacitated to drive a truck for four and one-half months after the accident, which was the only reason he did not work. He admitted that he was examined by a physician the day after the collision and that X-rays taken by the doctor did not show any physical injury. It was held not error to show that his driver's license had been cancelled after the collision, which might account for his not driving a truck after that time.

In the Capotosto case it was held to be within the discretion of the judge to admit testimony that the injured party was entitled to pay from his employer for part of the time he did not work after the injury, the court saying that the evidence had some bearing on the issue whether his absence from work was really due to injuries or was caused or prolonged by the fact that he would be paid wages while not working. We note that the case was before the court without a jury, and while finding that the defendant was negligent, the court found that the plaintiff suffered no injury as a direct and proximate result of such negligence.

In the Congdon case it was held proper to allow evidence that the plaintiff held a policy of insurance against accidents, the court saying that evidence in the case tended to show that his injuries were slight, and largely feigned.

We think all of these cases are distinguishable from the case at bar because in all of them there was evidence that the claimants were not injured, or their injuries were exaggerated.

On the proposition that it was not error to exclude the proffered evidence, appellee cites Texas Cities Gas Co. v. Dickens, Tex.Civ.App., 156 S.W.2d 1010; Mosby v. Texas & P. Ry. Co., Tex.Civ.App., 191 S.W.2d 55; Texas Cent. R. Co. v. Cameron, Tex.Civ.App., 149 S.W. 709, error refused; Chapman v. Evans, Tex.Civ.App., 186 S.W.2d 827; Graves v. Poe, Tex.Civ.App., 118 S.W.2d 969; Hellmueller Baking Co. v. Risen, 295 Ky. 273, 174 S.W.2d 134; and Louisville & N. R. Co. v. Utz, 299 Ky. 765, 187 S.W.2d 439.

In the Texas cases cited by appellee, it was held that evidence of collateral payments to the injured parties was either properly excluded or improperly admitted. Although it is not clear whether the admission of such evidence was urged as being material on the issue of malingering, or whether it was offered to abate the damages on account of partial...