Stoner v. Hudgins, 17968

• Decision Date: 22 June 1978
• Docket Number: No. 17968,17968
• Parties: William Howard STONER, Appellant, v. Willa HUDGINS, Appellee.
• Court: Texas Court of Appeals

Page 898

568 S.W.2d 898

William Howard STONER, Appellant, v. Willa HUDGINS, Appellee.

No. 17968.

Court of Civil Appeals of Texas, Fort Worth.

June 22, 1978.

Rehearing Denied July 27, 1978.

Seay, Gwinn, Crawford, Mebus & Blakeney and Charles L. Perry, Dallas, for appellant.

Gray, Whitten & Loveless and John L. Sullivan, Denton, for appellee.

OPINION ON MOTION FOR REHEARING

MASSEY, Chief Justice.

Our prior opinion in this case, under date of May 25, 1978, is withdrawn, with the following substituted therefor.

In this case Willa Hudgins, plaintiff, recovered a judgment based upon jury verdict for personal injuries and property damage resulting from a collision with an automobile driven by defendant Stoner at a signal-light controlled intersection in the City of Denton. Stoner appealed.

Judgment reversed, with the cause remanded for another trial.

There was no error in the verdict whereby there were jury findings supporting an award of 80% Of Mrs. Hudgins' damages against Mr. Stoner by the judgment. We forego description of the manner in which there was the collision of vehicles driven by the respective parties.

In major part there was no error in the remainder of the verdict. However, we have concluded that there was error as applied to certain elements of damages found by the jury which were an integral part of the totality of the award by judgment.

We copy the entire special issue of which the elements aforementioned comprised a part, with the answers returned by the jury written in:

"SPECIAL ISSUE NO. 19:

"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 WILLA HUDGINS for her injuries, if any, which you find from a preponderance of the evidence resulted from the occurrence in question?

"Do not include any amount for any condition existing before the occurrence in question, except to the extent, if any, that you find from a preponderance of the evidence that such other condition, if any, was aggravated by the injuries, if any, which resulted from the occurrence in question.

"Answer separately in dollars and cents, if any, with respect to each of the following elements:

"a) Physical pain and mental anguish in the past.

"ANSWER: $10,000.00

"b) Physical pain and mental anguish which, in reasonable probability, she will suffer in the future.

"ANSWER: $10,000.00

"c) Loss of her earning capacity in the past.

"ANSWER: $3000.00

"d) Loss of earning capacity which, in reasonable probability she will sustain in the future.

"ANSWER: $10,000.00

"e) Loss of her capacity to perform household maintenance services in the past.

"ANSWER: $0.00

"f) Loss of her capacity to perform household maintenance services which in reasonable probability she will sustain in the future.

"ANSWER: $5000.00"

Attention is directed to the answers to Sections (c) and (d) of Special Issue 19. The evidence relative to the questions will be later discussed, but these are the answers which, by the evidence, we hold to be without support and to have been answered under the court's instructions by "no evidence". Such answers are but a part of the findings upon the ultimate finding by addition of the elements of damages of the total of Mrs. Hudgins' damages. What resulted was what is better described as an "insufficiency of evidence" to support the total of the personal injury damages found than is connoted by the more common expression "so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous".

The answers to Sections (c) and (d) are segregable from the remainder of the verdict and do not taint the other jury findings. There would be an affirmable judgment if there had been no inquiry upon "earning capacity" because an error in application of credits, later discussed, could be cured by recomputation. Yet the judgment rendered on these and all the other jury findings must be reversed because they are part of the verdict upon the whole of which the court founded judgment and they could not be segregated so that there might be remand for retrial apart from the other damages elements. Furthermore, there is no doubt that Mrs. Hudgins sustained damages because of some loss of earning capacity; it was the amount of the loss which was not calculable because of the absence of evidence. The evidence was not fully developed.

We have concluded that because of the "insufficiency" in the evidence to support the total of the personal injury damages, coupled with the court's instructions under an erroneous theory of law that the jury should make findings on the elements of damages made the subject of Sections (c) and (d), on which there was "no evidence", the judgment must be reversed.

The supreme court in the case of Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117, 121 (1959), sets forth in clear language rules applicable to cases involving impairment of earning capacity, as follows:

"The point at issue here is the absence of any evidence which would indicate either the amount of Bonney's earnings or a monetary measure of his earning capacity prior to the injury. The rule in this jurisdiction is that where a plaintiff seeks damages for impairment of earning capacity, he must prove the amount of such damages with the degree of certainty to which it is susceptible. Dallas Consolidated Electric Street Railway Co. v. Motwiller, 101 Tex. 515, 109 S.W. 918; McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710; Southwestern Freight Lines v. McConnell, Tex.Civ.App., 254 S.W.2d 422, wr. er. ref. This rule requires that a plaintiff introduce evidence from which a jury may reasonably measure in monetary terms his earning capacity prior to injury, unless some reason appears for his failure to do so. The reason for this rule is that although the amount of damages resulting from impairment of a plaintiff's earning capacity must be left largely to the sound judgment and discretion of the jury, nevertheless the jury should not be left to mere conjecture where facts appear to be available upon which the jury could base an intelligent answer. In this case, Bonney introduced no evidence of the amount of his earnings prior to injury and no evidence that such prior earnings did not represent his full earning capacity. No reason appears for his failure to introduce such proof. Therefore, the trial court erred in instructing the jury that it might take into consideration any impairment to Bonney's earning capacity, and this cause must be remanded to the trial court for a new trial."

The statement on the law copied in the above paragraph was likewise copied in Rubner v. Kennedy, 417 S.W.2d 860, 862 (Tex.Civ.App. San Antonio, 1967, writ ref'd n. r. e.). In Rubner, as in the case of Bonney, and as is likewise true of the case before us, there was preservation of the right to complain of pertinent jury answers on the grounds of "no evidence" and "insufficiency of the evidence". In Bonney and in Rubner there was order of remand for a new trial.

The evidence relative to Sections (c) and (d) of Special Issue 19 came solely from Mrs. Hudgins. She was age 65 when her injuries were sustained in April of 1974 and was 68 years of age when her case was tried in May of 1977 (she would be 69 years of age as of date of this opinion). Indicated by the evidence is that she had not worked from some date within a year prior to the time she reached the age of 62 (1971) and began to benefit by the benefits to which she was entitled under the federal Social Security Act. From the time she passed her 62nd birthday until the time of the collision resulting in her injuries in April of 1974, she had not worked to earn money. In other words, so far as the evidence reveals, there was a period of between three and four years immediately prior to the time she was injured in which she had not worked or earned anything.

The evidence does raise the issue of whether she was able to do physical labor immediately prior to her injuries. She did all her own house work and did gardening work which involved digging holes with a spade. Impliedly, she at that time had the physical ability to do the work in which she had skills, to-wit: as a seamstress, including alteration of garments. There was no evidence that during the three or four year period immediately prior to the collision she had put her skills to use in doing seamstress work, or work of any kind.

The following comprises part of the statement of facts upon direct examination of Mrs. Hudgins by her own counsel:

"Q. At any rate, when that store closed up, did you after that, after '61 or '62 at Flow, and then six years with Jim Stone, and then two years with the fellow that bought him out, did you ever then work back out in for the public in a business? Now, I am talking about business establishment?

"A. No, I decided that I would go into my own business, and I converted my garage into a sewing room, and I had just planned to set up when this accident occurred."

There was not evidence from anyone which provided a "yardstick" or measure for Mrs. Hudgins' earnings or earning capacity had she been able to work between date of her injuries and date of trial. The same is...