Royal v. Cameron

• Decision Date: 17 September 1964
• Docket Number: No. 70,70
• Citation: 382 S.W.2d 335
• Parties: Frank ROYAL, Appellant, v. James Emett CAMERON, Appellee.
• Court: Texas Court of Appeals

Page 335

382 S.W.2d 335

Frank ROYAL, Appellant, v. James Emett CAMERON, Appellee.

No. 70.

Court of Civil Appeals of Texas, Tyler.

Sept. 17, 1964.

Rehearing Denied Oct. 8, 1964.

R. E. McDaniel, Winnie, Fairchild & Hunt, Center, for appellant.

Herbert Boyland, Kenley, Ritter & Boyland, Longview, for appellee.

DUNAGAN, Chief Justice.

The judgment theretofore entered on July 23, 1964, is set aside and the original opinion is withdrawn. This opinion is substituted for the original.

This is a common law damage suit growing out of an automobile collision on June 15, 1961, in Gregg County, Texas. Appellant was riding in his own car, which was being driven by Willie Marshall, and the only other occupants in the car at the time of the accident were Willie Marshall's daughter and the Plaintiff's granddaughter.

Appellant instituted this suit against the Defendant in the 124th District Court of Gregg County, for damages to his automobile and for his personal injuries alleged to have resulted from the accident.

The collision in question was between two vehicles moving in the same direction. The car driven by the Appellee hit Appellant's car from the rear. The Appellant's vehicle was not damaged to the extent that it was disabled. There is not evidence the Appellant complained of injury the night of the accident to the investigating officers. The other occupants in the car at the time of the accident were not injured.

The injuries alleged by Appellant were largely established by subjective complaints. He was never hospitalized, save for the purpose of running a myelogram two years after the accident.

Upon the trial of the case, it was stipulated that Appellee was liable for all actual damages incurred by Frank Royal as a result of the collision. The Court did not submit to the jury the amount of property damage since this was undisputed. The Court submitted the usual damage issues in a personal injury suit in three separate issues, to-wit:

Issue No. 1 inquired of the jury what would reasonably compensate Frank Royal for reasonable and necessary hospital expenses, if any, incurred by Frank Royal as a result of the collision in question.

Issue No. 2 inquired of the jury what would reasonably compensate Frank Royal for reasonable and necessary doctor expenses, if any, incurred by him as a result of the collision in question.

Issue No. 3 inquired of the jury what would reasonably compensate Frank Royal for his injuries and actual damages, if any, other than damages to his car, caused by the collision in question.

To each Issue the jury answer 'None.'

The judgment of the Court awarded to Appellant $300.00 for damages to his automobile on the undisputed evidence, but based upon the findings of the jury to the issues submitted, the Court did not award any damages for his alleged personal injuries. From this judgment the Appellant has duly perfected his appeal to this Court.

The Appellant, by his Points 1 through 9, complains that the Court erred in not granting his motion for a new trial because the jury's answer to each of the issues is contrary to the undisputed evidence, and so against the overwhelming weight and preponderance of the evidence to be manifestly wrong and unjust. The Appellant on trial of this cause, testified that as a result of this collision, he received injuries that caused severe pain to his back and neck and was not able to perform work as he had done prior to the accident. In addition to several lay witnesses, who corroborated Appellant in respect to his alleged injuries and his inability to perform manual labor, Appellant offered the testimony of Dr. V. M. Holland, who was the family physician and Dr. Heinz K. Faludi, a neurosurgeon from Shreveport, Louisiana, who testified as to Appellant suffering pain in his neck and back and in their opinion it was caused from the accident. However, Dr. Holland testified that Appellant's condition may have resulted from some other cause.

Appellant did not go to a doctor until August 31, 1961, which was approximately 80 days after the accident, and then it was at the suggestion of an attorney for the purpose of an examination and report, and that was to his family physician, Dr. Holland of Carthage.

Dr. Holland did not x-ray the Plaintiff's neck until February 16, 1962, and he then found severe arthritis, from which he said he would never recover and that it would cause limitation of motion of neck indefinitely. He further stated that the limitation of rotation in his neck could likely have been caused by disease as by injury and that he (Appellant) had tenderness of the mid-cervical vertebra, which could be from disease or injury.

Dr. Faludi, who saw the patient for the first time on June 26, 1963, also x-rayed the Plaintiff's neck and found arthritis. He found the bone alignment and intervertebral spaces to be good. He noted the calcifications in the ligamentum nuchae. He found Appellant was suffering with adhesive arachnoiditis. His impression of the Plaintiff's complaint of his neck trouble was slight soreness of left side of neck.

The testimony of Dr. James H. Johnson, in substance, was that in his opinion Appellant's condition was not caused from the accident in question, but it was from an arthritic condition and other conditions to be found in a person the age of the Appellant, who at the time of the accident was between 65 and 70 years of age.

The Plaintiff had shortness of breath, history of prior complaints of back and leg pain, and evidence of arteriosclerosis (arcus senilis). This was shown by the testimony of his own doctors.

Dr. Johnson testified that this osteoarthritis was an aging process and could be itself cause pain and disability. He further stated he did not believe adhesive arachnoiditis, which the Appellant was shown to have, could be caused or aggravated by the collision described by the Appellant. He was of the opinion hardening of the arteries could cause back and leg pain.

The x-rays failed to disclose any broken bones or any abnormality, such as displaced vertebra or mal-alignment of the spine. The only thing shown by the x-rays was arthritis, which Dr. Holland referred to as disease, and which he stated would cause permanent trouble in the Appellant's neck. As to the low back condition, Dr. Johnson testified that in his opinion this court not have been caused by the accident, and the jury was entitled to believe him, rather than Dr. Faludi. Dr. Johnson testified in person (Dr. Holland and Dr. Faludi testified by deposition), and the jury had the opportunity to observe his demeanor on the stand. Dr. Faludi admitted the value of his testimony depended on the validity of his opinions. The testimony of a physician is evidentiary and never binding upon the trier of facts. In Reinke v. Thomas, (Tex.Civ.App.) 1963, 369 S.W.2d 692, writ ref., n. r. e., the Court held:

'* * * The jury was in its province in rejecting all or any of the theories of each of the doctors concerning their respective views as to the pain and suffering sustained by appellant on account of his claimed injuries. * * *'

The Appellant's case largely rests upon Appellant's complaints of pain and suffering. Matters of pain and suffering are necessarily speculative, and it is peculiarly within the province of the jury to resolve these matters. Harbuck v. Ramos, (Tex.Civ.App.) 1963, 371 S.W.2d 912, no writ history.

In the case of Murray v. Missouri, K. & T. R. Co., (Tex.Civ.App.) 1935, 79 S.W.2d 334, no writ history, the Court said:

'* * * When we consider the other feature, that is, pain and suffering, these are matters which must be left largely to a jury's discretion. They see the witnesses and hear them on the stand. What seems large in black and white may dwindle to insignificance in the larger picture which the jury sees in the trial court.'

There are certain fundamental rules of law which control the Court in deciding if the verdict of the jury is contrary to the overwhelming preponderance of the evidence:

(1) The burden is on the complaining party to show the verdict is contrary to the overwhelming preponderance of the evidence. Foran v. Smith, (Tex.Civ.App.) 1950, 228 S.W.2d 251, no writ history; Wright v. Mack Motor Truck Corp., (Tex.Civ.App.) 1960, 336 S.W.2d 831, no writ history; United States Letter Carriers Mut. Ben. Ass'n v. Sypulski, (Tex.Civ.App.) 1963, 364 S.W.2d 840, no writ history; Marks v. Saul, (Tex.Civ.App.) 1959, 326 S.W.2d 24, writ ref., n. r. e.

(2) It is within the province of the jury to determine the credibility of the witnesses and the weight to be given their testimony. Ohlen v. Hagar, (Tex.Civ.App.) 1948, 212 S.W.2d 253, writ ref., n. r. e.; Heckathorn v. Tate, (Tex.Civ.App.) 1962, 355 S.W.2d 845, no writ history; Reinke v. Thomas, supra; in the Court's charge in the case at bar, the jury was told they were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. In this connection, the jury may accept or reject all or part of the testimony of any witnesses and the number of witnesses testifying to a certain fact is not controlling. Ohlen v. Hagar, supra.

(3) It is not enough to show the verdict is merely contrary to the evidence, but the record must clearly show the verdict is so contrary to the overwhelming preponderance of the evidence to indicate it is in fact the product of corruption, passion and prejudice and be so wrong as to be unconscionable. Quinn v. Wilkerson, (Tex.Civ.App.) 1946, 195 S.W.2d 399, no writ history; Advance Loan Service v. Mandik, (Tex.Civ.App.) 1957, 306 S.W.2d 754, no writ history. The Court does not simply place itself in the shoes of the jury and determine if it would have made the same finding. Bardwell v. anderson, (Tex.Civ.App.) 1959, 325 S.W.2d 929, writ ref., n. r. e.

The jury could take into consideration: Appellant's complaint regarding the permanency of her injuries which were not corroborated by his own medical testimony; no one...