Rubner v. Kennedy
| Decision Date | 03 July 1967 |
| Docket Number | No. 14592,14592 |
| Citation | 417 S.W.2d 860 |
| Parties | Chester H. RUBNER, Jr., Appellant, v. Derwood O. KENNEDY, Appellee. . San Antonio |
| Court | Texas Court of Appeals |
Hobart Huson, Jr., San Antonio, for appellant.
Maverick, Tynan & Gochman, San Antonio, Warren Burnett, Odessa, for appellee.
This is a suit for damages arising out of an automobile collision which occurred in the State of Louisiana between an automobile owned and operated by appellant, Chester H. Rubner, Jr., and one being driven by appellee, Derwood O. Kennedy. Trial was to a jury who found that appellant failed to keep such a lookout as an ordinarily prudent person would have kept under the same or similar circumstances; that such failure was a proximate cause of the collision, and that appellee was entitled to recover the sum of $45,000.00 as his damages.
Appellant complains of seven points of error, four of which pertain to the element of damages. His first two points of error are as follows:
'FIRST POINT
(a) The Court erred in submitting to the jury for consideration as an element of damages 'loss of earnings' by Appellee in the past, as there was no evidence to warrant the submission of such element.
(b) The Court erred in failing to disregard the finding of the jury as to damages and grant Appellant a new trial, as any money allowed for 'loss of earnings' was against the overwhelming weight and preponderance of the evidence.
(a) The Court erred in submitting to the jury for consideration as an element of damages 'diminished or lessened earning capacity' by Appellee in the future, as there was no evidence to warrant the submission of such element, and, in particular, no evidence as to Appellee's earnings prior to injury.
(b) The Court erred in failing to disregard the finding of the jury as to damages and grant Appellant a new trial, as any money allowed for 'diminished or lessened earning capacity' was against the overwhelming weight and preponderance of the evidence.'
The damage issue submitted to the jury was as follows:
'What sum of money if paid in cash now, if any, do you find from a preponderance of the evidence would fairly and reasonably compensate the plaintiff for the injuries, if any, proximately caused by the collision in question?
Answer by stating the amount, if any, in dollars and cents.
We, the jury, answer: Forty Five Thousand Dollars No/Cents.
In arriving at the amount of money, if any, to the foregoing question, you may take into consideration the following and none other:
A. Physical pain and suffering and mental anguish, if any, which the plaintiff has suffered in the past from the time of the collision in question down to the time of this trial;
B. Physical pain and suffering and mental anguish, if any, which the plaintiff will in all reasonable probability suffer in the future as a direct and proximate result of the collision in question;
C. Loss of earnings and physical impairment, if any, which the plaintiff has suffered in the past from the time of the collision in question down to the time of this trial;
D. The diminished or lessened earning capacity, if any, and physical impairment, if any, which the plaintiff will suffer and sustain in all reasonable probability in the future as a direct and proximate result of the collision in question.'
The testimony is undisputed that appellee suffered physical injury as a result of the collision and some degree of disability. It is undisputed that he was unable to work for a period of time, but there is a dispute as to his present ability to work. Appellee testified that he is not able to work, and there is some medical testimony in support of his contention, but there is also medical testimony that there is no reason why he could not pursue the same profession and vocation that he had pursued prior to the trial, and do work such as a laboring man might do. Appellant's first and second points of error, however, are predicated upon his contention that irrespective of whether appellee was completely or only partially disabled, no evidence was adduced to show what his earnings were prior to the accident, and no testimony upon which a jury could determine any diminished or lessened earning capacity.
Appellee testified in some detail as to the various types of work he had done. He had worked as a welder, as an electrician's helper; had worked in shipyards, and as a carpenter. He had served in the Military Service, had been employed as a mechanic, and had been plant manager for a business. However, there is no testimony whatsoever in the record as to what appellee, or any other person similarly employed, had earned in any of these avocations. At the time of his injury, he was self-employed and was in the business of building houses for about one and one-half years. In such business he did some of the work himself on the houses he built. The only testimony as to his earnings in such house-construction business was by appellee, to the effect that he was able to earn a living at such business and was drawing $800.00 a month out of the business. This is all the testimony or evidence there is concerning the earnings of appellee prior to his injury. Appellee testified that he had made income tax returns, had kept books on his housebuilding operations, and had used a checkbook to run his business. However, none of these records, or any other business records, were introduced to show his earnings, appellee testifiying that he had misplaced his records. Although the evidence is undisputed that appellee performed some personal services in his house-construction business, there was no evidence as to the value of those services, nor was it shown from what sources he drew the sum of $800.00 a month, whether from profits, operating capital, investments in the business, loans, or other sources.
Appellee testified that since said accident he had not been able to hold a job, that although he had tried to do various types of work, including salesman, janitor, file clerk and overseer, that he was unable to do the work required; that he was not able to carry on his house-building business, and had lost such business.
The Supreme Court in the case of Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117 (1959), sets forth in clear language rules applicable to cases involving impairment of earning capacity, as follows:
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...Lightfoot, 139 Tex. 304, 162 S.W.2d 929, 930-31 (1942); International & G.N.R., 17 S.W. at 47; see Rubner v. Kennedy, 417 S.W.2d 860, 864 (Tex.Civ.App.--San Antonio 1967, writ ref'd n.r.e.). In disposing of appellant's third point of error, we assumed loss of time was a compensable element ......
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