Saad v. National Child Care Center, Inc.

• Decision Date: 11 February 1981
• Docket Number: No. A2422,A2422
• Citation: 612 S.W.2d 660
• Parties: Jean SAAD, a Minor B/N/F Raafat Saad, Appellant, v. NATIONAL CHILD CARE CENTER, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 660

612 S.W.2d 660

Jean SAAD, a Minor B/N/F Raafat Saad, Appellant, v. NATIONAL CHILD CARE CENTER, INC., Appellee.

No. A2422.

Court of Civil Appeals of Texas, Houston (14th Dist.)

Feb. 11, 1981.

Jacko Hargrove, Houston, for appellant.

Wilton F. Chalker, Lorance & Thompson, Shirley C. Hunter, Houston, for appellee.

Before J. CURTISS BROWN, C. J., and PAUL PRESSLER and JUNELL, JJ.

PAUL PRESSLER, Justice.

This is an appeal from a take nothing judgment based upon a jury verdict in Appellant's suit for damages allegedly sustained while Appellant was in the care of Appellee at Appellee's facilities.

It is undisputed that the wind blew a door shut catching and injuring Appellant's little finger. Appellant was five at the time. The only other evidence of the event is contained in the Unsworn Statement of the Appellant which was read into the record by counsel for Appellant without objection. Therein, Appellant alleged that she was instructed by her teacher to shut the door because the wind was blowing the papers off the teacher's desk inside. While she was attempting to shut the door, another classmate removed the rock which was propping the door open and the wind blew the door shut on Appellant's finger. Appellee introduced no evidence.

In response to each of the many subdivisions of Special Issue No. 1 setting forth various alleged acts of negligence, the jury found that Appellee was not negligent. Having so answered all of the Negligence issues, the jury correctly did not answer Special Issue No. 2 regarding proximate cause. In response to Special Issue No. 3, the jury found that there were no damages.

Appellant contends in her first three points of error that the findings of the jury were so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

In appraising these contentions, we must consider all of the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). While this Court must set aside the findings and grant a new trial if an answer of the jury to a material issue is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, we must not substitute our opinion for that of the jury merely because we might have reached a different fact conclusion. Whaley v. Transport Insurance Co., 559 S.W.2d 451, 453 (Tex.Civ.App. Tyler 1977, writ ref'd n. r. e.); Dellolio v. Brown, 399 S.W.2d 425, 426 (Tex.Civ.App. Houston 1966, no writ). The evidence in the record in this...