Southwestern Freight Lines v. McConnell

• Decision Date: 12 November 1952
• Docket Number: No. 4907,4907
• Citation: 254 S.W.2d 422
• Parties: SOUTHWESTERN FREIGHT LINES v. McCONNELL.
• Court: Texas Court of Appeals

Page 422

254 S.W.2d 422

SOUTHWESTERN FREIGHT LINES v. McCONNELL.

No. 4907.

Court of Civil Appeals of Texas, El Paso.

Nov. 12, 1952.

Rehearing Denied Dec. 10, 1952.

Burges, Scott, Rasberry & Hulse, El Paso, for appellant.

R. P. Langford and Kemp, Smith, Brown, Goggin & White, El Paso, for appellee.

McGILL, Justice.

In this case appellee as plaintiff in a trial before a jury recovered a judgment against appellant as defendant for $4,310.50 as compensatory damages for personal injuries suffered by him, and medical, hospital and ambulance expenses necessarily incurred as a result thereof.

The injuries grew out of an accident which occurred on the morning of April 1, 1951, near the intersection of Overland Street and Cotton Avenue, in the city of El Paso, Texas. The defendant's employee was driving a tractor with a heavily loaded trailer attached, east on Overland Street. When he attempted to negotiate the turn north into Cotton Avenue, this being a sharp turn, he swerved to the left in order to avoid striking a Ford car which had been parked on North Cotton Avenue in his line of traffic, and the trailer turned over on a Kaiser car which was parked some little distance north of the Ford car and in which plaintiff was seated, he having just arrived at the intersection. Plaintiff was injured as a result of the accident.

Appellant has presented and briefed fourteen points. We find it necessary to discuss only the first. The first point is that there was no evidence to show the earning capacity of plaintiff or that there had been diminution thereof, and hence the court erred in charging the jury that they could consider as an element of damage plaintiff's diminished capacity to labor and earn money in the future.

There was evidence that plaintiff's injuries consisted of a bruise on his left hip which was as large as a saucer and became as large as a plate, but disappeared within a few weeks after the accident; several lacerations about his head and face, one of which resulted in a scar; a laceration on the back of his left hand which healed promptly but which severed an extensor tendon of the third or middle finger of the left hand. There was medical testimony that plaintiff's left hand might tire more easily than other parts of his body when used extensively-condition which might or might not clear up completely; that plaintiff had suffered about 10% permanent disability in his left middle finger-that there was approximately ten per cent limitation of motion of the left middle finger in bending it or straightening it out; that extensive use of his left hand would cause it to begin to ache. Plaintiff testified that he did not have much grip in the injured finger; that the only discomfort he experienced was with the finger 'going to sleep' after he had driven a car fifty or seventy-five miles while gripping the steering wheel hard, or when he was pushing a lawn mower; that the back of his hand where it had been lacerated was sensitive though no pain resulted therefrom. Plaintiff at the time of the accident and for seven years prior thereto had been manager of the El Paso Motor Company which was engaged in the business of selling new and used automobiles. He was not called upon to perform manual labor in the ordinary course of his employment; there was no evidence of plaintiff's earnings prior to or subsequent to the injuries; nor of his specific duties as manager of the El Paso Motor Company, nor of his age or physical condition prior to the accident.

Defendant's exception to the court's charge which permitted the jury to consider diminution of earning capacity goes further than the specific point presented. It states that:

'There is no basis in the evidence on which the jury could calculate or in any way make any award for loss of future earning capacity.'

One of defendant's grounds for a new trial in its first amended motion for a new trial is that there was no evidence authorizing a jury finding of diminished earning capacity in the future. This point is argued under appellant's first point and we think is sufficiently presented in the absence of objection, to warrant our consideration.

We think the evidence was sufficient to show that there was a diminution of plaintiff's earning capacity. It is not essential that it show a loss of earning capacity in his particular business or profession, but only that it show a diminished earing capacity generally-that is, in any business or profession. Triangle Cab Co. v. Taylor, Tex.Civ.App., 190 S.W.2d 755, loc. cit. 759(3), affirmed 144 Tex. 568, 192 S.W.2d 143. The ten per cent limitation in the motion of the middle finger of the left hand causing ten per cent permanent disability of this finger, which in turn caused a lessening of the grip of the left hand and was sensitive is of such a serious and permanent nature that loss of some earning capacity is a necessary result. However, it has been said that even where this is so, 'proof is required to show the extent and amount of the damages.' McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712, loc. cit. 712(1-6). In Triangle Cab Co. v. Taylor, supra (144 Tex. 568, 192 S.W.2d 146), this court pointed out that this statement in McIver v. Gloria was dicta, and affirmed a judgment for the plaintiff, although we held that there was no evidence to show the extent and amount of plaintiff's loss of earning capacity in his particular business or profession. (Emphasis ours here). In affirming the judgment the Supreme Court did not in any way indicate that this dicta in McIver v. Gloria was not the law, but on this point said:

'The Court of Civil Appeals iterated the evidence contained in the record with respect to this phase of the case. We are of the opinion that the evidence contained in the record authorized the trial court to submit to the jury the element of probable loss on account of respondent's diminished earning capacity in the future. Amberson v. Woodul, Tex.Civ.App., 108 S.W.2d 852, loc. cit. 855; San Antonio & A. P. R. Co. v. Turney, 33 Tex.Civ.App. 626, 78 S.W. 256, writ refused.

We...