Ryan v. Hardin

• Decision Date: 18 April 1973
• Docket Number: No. 11980,11980
• Citation: 495 S.W.2d 345
• Parties: Betty W. RYAN, a feme sole, Appellant, v. Sharon Ann HARDIN, a minor, Appellee.
• Court: Texas Court of Appeals

Page 345

495 S.W.2d 345

Betty W. RYAN, a feme sole, Appellant, v. Sharon Ann HARDIN, a minor, Appellee.

No. 11980.

Court of Civil Appeals of Texas Austin.

April 18, 1973.

Rehearing Denied June 6, 1973.

Bob Roberts, Byrd, Davis, Eisenberg & Clark, Austin, for appellant.

Milton L. Bankston and JoAnne Christian, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellee.

O'QUINN, Justice.

Appellant, Betty W. Ryan, brought this lawsuit against appellee, Sharon Ann Hardin, for personal injuries sustained by appellant in an automobile collision at a street intersection in Austin in June of 1970.

Upon a jury verdict, finding issues of negligence and proximate cause against appellee and finding all issues of damages, except loss of earnings in the past, for appellant, the trial court entered judgment for appellant awarding damages in the sum of $6,853.28.

The jury failed to find that appellant had suffered any loss of earnings in the past, but found that she would sustain loss of earning capacity in the future in the amount of $1,500. Appellant moved for judgment Non obstante veredicto and urged the court to render judgment 'according to the uncontroverted evidence and add the uncontroverted amount for the past lost earnings.'

The trial court overruled appellant's motion for judgment, as well as a motion for mistrial, and appellant thereafter filed a motion for new trial, complaining of the overruling of these motions, subsequent to entry of judgment. At a hearing on the motion for new trial appellant presented a bill of exceptions, which was approved with modifications. Appellant perfected her appeal after new trial was denied.

Appellant brings four points of error under which she takes the position that the jury's finding of no loss of past earnings was not supported by the evidence and was induced by improper argument of appellee's counsel. Appellant urges this Court to render judgment for an amount of wages lost in the past which she contends was shown by uncontroverted testimony.

We will overrule appellant's points of error and affirm the judgment of the trial court.

The jury failed to find that appellant should be compensated in any amount for loss of earnings in the past. The pertinent portion of Special Issue 7, on the subject of past earnings, and the jury's answer were:

'What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate Plaintiff, Betty W. Ryan, for her injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question? 'Answer separately in dollars and cents, if any, with respect to each of the following elements:

'c. Loss of earnings, if any, in the past.

'Answer: --0--'

Appellant's position, as stated in her brief is:

'There are two separate questions which this Court must answer in order to reach justice in this case. First, it must be determined whether the jury's answer of 'zero' to the part of Special Issue Number Seven inquiring about past lost earnings was manifestly unjust. Second, this Court must look at why the jury answered the issue that way, and what is the proper remedy to the plaintiff in this kind of situation.'

Appellant answers the first question by argument that the jury's answer 'is manifestly wrong and unjust.' Appellant's answer to the second question is that the jury failed to award damages for loss of past earnings '. . . due to intentional, improper argument of counsel (for appellee), and the ONLY equitable remedy here is the rendition of judgment for the additional amount of the uncontroverted lost wages.'

Counsel for appellee argued to the jury, 'There is no evidence in this record of one dollar being lost by this lady as a result of these injuries and the time away from her job. There is no burden upon this Defendant to make proof of these facts. There is proof in this record of a period of time which she was not on the job. This is a suit for loss of past earnings and it is simple, if you are in a position where you are trying this case, to put the income tax return up there and prove how many dollars were actually lost as a result of the collision or accident in question.'

Counsel for appellant at that point interposed objection to the argument, saying '. . . we object to that for the reason that it violates the motion we made before the trial. ¹ We further object for the reason that Counsel was furnished with those income tax records and had them available to him for introduction and did not do so and for those reasons we ask the Court to sustain our objection and instruct the Jury not to consider for any purpose Counsel's last remark.'

'With respect to the income tax?' the Court inquired. Counsel agreed. The Court then stated, 'I will so instruct the Jury. You are the exclusive judges of the evidence and you will not consider the statement.'

Counsel for appellee continued, 'All right. It is not incumbent upon me to make proof of this fact in regard to loss of earnings. This is a burden that is upon the Plaintiff and whether or not proof of how long someone was or was not at the place of business proves dollars and cents doesn't make it as far as I am concerned.'

In the course of arguing the several phases of Issue No. 7 as to damages counsel for appellee returned to loss of earning in the past and stated, 'I looked with interest at the lost earnings. You are going to have to guess your way to the proper verdict, which the Court has instructed you not to do, if you are going to guess and assume that there were lost wages. Assuming that you do, and though it changes throughout all day's session yesterday, I am willing to ride the last session of the day in which we reiterated when we were off and my figures differed from . . . (counsel for appellant). I am not saying this is what you write down there as a figure, but I am saying that you can follow the evidence and, frankly, until one point I find very little difference.'

Counsel for appellee at this point argued from notes he had made during the trial, suggesting figures he had estimated from the testimony of appellant, based on a salary of $675 per month and the time each month appellant believed she had missed from work. The figure counsel for appellee arrived at in this manner reached a total of $3,363.82.

Earlier, in oral argument, counsel for appellant had followed a similar procedure before the jury, and by way of summary argued, '. . . a total for the entire time that we say she lost of $4,097.25. Now, these are her lost wages if you calculate them according to the testimony we believe, ladies and gentlemen, $4,097.25.'

Appellant urges on appeal that when '. . . the jury disregards the evidence as to an element of damages which is in the past, uncontroverted, definite and calculable by simple mathematics, the trial and appellate courts should fully rectify the injustice done. This is particularly true where the error was brought about by the intentional conduct of an experienced trial attorney.'

Appellant in her brief argues, 'From the uncontroverted testimony . . . (counsel for appellant) calculates the damages at at least $3,592.50 and Defense counsel calculates them at $3,363.82, a figure as he indicated, he was willing to 'ride' . . .' (Emphasis by appellant.)

The estimated totals arrived at by counsel for each of the parties are not in agreement, and appellant's estimate in argument to the jury varies from the estimate argued on appeal by several hundred dollars. There was no stipulation as to an agreed sum which would compensate appellant for lost earnings in the past. The jury failed to find any amount for loss of past earnings. Yet appellant argues, 'It only requires simple mathematics to determine the amount of salary payable for the times she (appellant) was entirely absent,' and contends this Court should '. . . render the judgment the Trial Court should have rendered on the uncontroverted evidence.'

This Court has no jurisdiction to determine originally a question of fact in a case on appeal. The provisions of the Constitution of Texas that judgments of courts of civil appeals shall be conclusive on the facts of a case have application only where jurisdiction of the intermediate court to pass on sufficiency of the evidence is invoked by appropriate assignments of error. Constitution, Art. V, sec. 6, Vernon's Ann.St.; Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (1948). As stated by the Supreme Court more recently, '. . . courts of civil appeals have no jurisdiction to make original findings of fact in cases on appeal; they can only 'unfind' facts.' City of Beaumont v. Graham, 441 S.W.2d 829, 832 (Tex.Sup.1969), citing Wisdom and 38 Texas L.Rev. 361, 368.

The record shows that counsel for appellant made no objection to the argument of counsel for appellee after the trial court sustained objection to the reference made to income tax returns and instructed the jury not to consider, the statement....