Roberts v. Tatum

• Decision Date: 21 December 1978
• Docket Number: No. 1316,1316
• Citation: 575 S.W.2d 138
• Parties: Sheila Marie McDonald ROBERTS, Appellant, v. Ernest A. TATUM, Appellee.
• Court: Texas Court of Appeals

Page 138

575 S.W.2d 138

Sheila Marie McDonald ROBERTS, Appellant, v. Ernest A. TATUM, Appellee.

No. 1316.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 21, 1978.

Rehearing Denied Jan. 11, 1979.

Lee Mahoney, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellant.

Guy Allison, Corpus Christi, for appellee.

OPINION

YOUNG, Justice.

This is a suit for damages brought by appellee, Ernest A. Tatum against appellant, Sheila Marie McDonald Roberts, for injuries sustained as a result of a rear-end collision. Appellant Roberts admitted negligence in the trial court and requested a trial on the issue of damages only. Trial was to a jury. The jury returned verdict in the amount of $278,000.00 which was rendered against Roberts, who appeals.

The complaints on appeal are directed to the jury's answers to special issues 1, 2, and 3, subsections (a) through (f). The jury in answer to the several elements of damages inquired about, found the following amounts would reasonably compensate the appellee for his injuries:

1 $500.00 for necessary medical and hospital care received in the past;

2 $13,500 for medical and hospital care in the future;

3(a) $7,000 for physical pain and mental anguish in the past;

3(b) $25,000 for physical pain and mental anguish which in reasonable probability he will sustain in the future;

3(c) $67,000 for loss of earning capacity in the past;

3(d) $90,000 for loss of earning capacity which in reasonable probability he will sustain in the future;

3(e) $25,000 for physical impairment in the past;

3(f) $50,000 for physical impairment which in reasonable probability, he will sustain in the future.

These jury awards are generally attacked by "no evidence", "factual insufficient evidence" and "against the great weight and preponderance of the evidence" points. We shall consider the legal insufficiency points according to the tests in Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup.1975). And we will apply to the factual insufficiency points the rule in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.Sup.1951). In sum, though, appellant's arguments under these points of error are not that the awards are totally unsupported by the evidence, but rather that the awards are excessive and show that the appellant did not receive a fair trial. In addition, appellant brings three points concerning the trial court's improper admission and exclusion of certain evidence. Accordingly, appellant prays for a reversal and remand for a new trial, or in the alternative, that we require a remittitur by the appellee of $185,123.94.

In determining whether a verdict is excessive, the court must review only that evidence favorable to the verdict and the jury's determination will not be disturbed as excessive where there is any evidence to sustain it. Southern Pac. Transp. Co. v. Peralez, 546 S.W.2d 88, 98 (Tex.Civ.App. Corpus Christi 1976, writ ref'd n.r.e.); Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n.r.e.). There must be some proof, circumstantial or direct, of bias or prejudice, and in the absence of such proof, this Court is required to give every inference to the evidence in favor of the verdict. Southern Pac. Transp. v. Peralez, supra at 98.

A fair summary of the background facts shows these events and circumstances. The accident made the basis of this lawsuit occurred on January 6, 1973, on the ferry which transports persons and vehicles across the ship channel at Port Aransas, Texas. Appellee, a resident of San Antonio, was parked on the Ferry in his pick-up truck when appellant's vehicle struck his truck in the rear. The force of the collision was sufficient to cause major damage to both vehicles.

During the accident appellee's neck was thrown forward into the steering wheel, causing a bruise on his throat and other unknown injuries. Following the accident, Tatum visited Dr. Walthall, who had been his doctor for 42 years. Dr. Walthall x-rayed the appellee's back and prescribed medication. A few days later, appellee's condition began to worsen with increasing neck and arm pain and Dr. Walthall sent him to see Dr. Branch, an orthopedic surgeon. Dr. Branch examined the appellee and prescribed a soft collar. Dr. Branch then recommended that appellee be tested with a myelogram. When the possible dangers of the myelogram, namely, death or paralysis, were explained to the appellee, he refused the test. Since that time the appellee has not entered the hospital but has visited Dr. Walthall for examination and medication of his neck, back and arms.

Prior to the accident herein, appellee was in excellent health with respect to his neck and arms. He had no difficulty performing his job as a switchman with the Missouri, Kansas and Texas Railway Company. This job involved climbing, stooping and bending. Appellee had previously gardened, fished, scuba dived, hunted, flown airplanes, driven his dump truck, both for hire as well as for personal tasks, and performed odd jobs as a carpenter and as an auto and airplane mechanic. All in all, he was a powerful, robust, active, manually-orientated person who enjoyed work and play.

Since the accident, though, he has ceased to enjoy the activities referred to previously. Any physical exertion causes pain. He is no longer able to work and will be unable to do so in the future. He also experiences numbness in his right hand, burning sensation in his arms, and tends to drop things from his hands. He is unable to turn his neck and head so that it is virtually impossible for him to safely operate his dump truck. He now spends most of his time lying around the house.

At trial, Dr. Walthall testified that the appellee's x-rays showed that as a result of the accident, appellant had ruptured two discs and probably a third in his neck. This damage was causing atrophy of the muscles in his right arm, irregular curvature of the appellee's spine and daily pain and discomfort.

Appellant brings forward twenty-nine points of error. Appellant's first eight points complain that the jury's awards for past and future medical expenses is excessive and shows bias and prejudice and that the awards are not supported by legally and factually sufficient evidence. She also complains, in points 27 and 28, that the testimony of Dr. Walthall concerning the cost of future surgery should not have been admitted.

As to past medical expenses, appellant argues that the testimony shows damages of only $370.45. But the record shows otherwise. Appellant's counsel introduced evidence about medical bills which totalled $216.45 for the period from the date of the accident until sometime in April of 1973. Apparently, $43.00 of this amount represented Dr. Walthall's bills. As of August 25, 1973, Dr. Walthall's total bill from the time of the accident was $68.00, thus, from April 1973 to August 25, 1973, his bill was $25.00. From August of 1973 to the date of Dr. Walthall's deposition, sometime in 1975 or 1976, Tatum visited Dr. Walthall ten or fifteen times at $13.00 per visit causing a bill of somewhere between $130.00 and $195.00. Assuming fifteen visits was the correct number, the total would be $441.45 ($195.00 plus $216.45) from the date of the accident to the time of Dr. Walthall's deposition. Appellant's counsel, then asked Dr. Walthall if $268.00 represented his total bill from 1973 to the date of the trial, i. e. May 23, 1977. Dr. Walthall replied, "That sounds about right. You are doing the addition." But, considering only the evidence favorable to the verdict, there remained a gap in Dr. Walthall's bills from the time of his deposition in 1976 to the time of trial. The record reflects that appellee stated that in the few years prior to trial he had visited Dr. Walthall for his neck problem at least once a month and sometimes more often. This means that prior to the trial on May 23, 1977, appellee visited Dr. Walthall at least five times multiplied times $13.00 per visit or $65.00, bringing the total bill to $506.45 ($441.45 plus $65.00). And, if Dr. Walthall's deposition were taken in the early part of 1976 this amount would be much greater. We find no bias or prejudice in the jury's granting $500.00 damages for past medical expenses.

About appellant's complaints of the award of $13,500 for future medical expenses, the record demonstrates the following. Dr. Walthall testified that he had no quarrel with the U.S. Government Life Expectancy Table which predicted that a man aged 65 would live an additional 17.2 years. Appellee was 65 years old at the time of trial. Dr. Walthall further testified that assuming no further surgery were performed he expected appellee to incur $500.00 medical expenses per year after the trial. In other words, appellant would incur $8,600.00 medical expenses over the period of his expected life. If surgery were performed, Dr. Walthall expected appellee's yearly expenses to increase considerably over his $500.00 per year estimate. He further testified that in "reasonable medical probability" appellee would need back surgery in...