Teague v. Washburn, 3795

• Decision Date: 17 May 1963
• Docket Number: No. 3795,3795
• Citation: 368 S.W.2d 229
• Parties: C. E. TEAGUE, Appellant, v. David E. WASHBURN, Appellee.
• Court: Texas Court of Appeals

Page 229

368 S.W.2d 229

C. E. TEAGUE, Appellant, v. David E. WASHBURN, Appellee.

No. 3795.

Court of Civil Appeals of Texas, Eastland.

May 17, 1963.

Rehearing Denied June 7, 1963.

Henderson & Bryant, Sherman, for appellant.

Rogers & Rogers, Sherman, for appellee.

GRISSOM, Chief Justice.

David E. Washburn sued C. E. Teague and others to recover for personal injuries and property damages caused by an automobile-truck collision. A jury found that C. E. Teague was guilty of various acts of negligence which proximately caused the collision and that Washburn was not negligent. The court rendered judgment for Washburn against C. E. Teague for $11,675.45. C. E. Teague has appealed.

Appellant's points are that (1) the court erred in refusing to instruct the jury in connection with the damage issue that Washburn's preexisting congenital condition could not be considered, except as it might have been aggravated by the collision; (2) that the court erred in submission of the damage issue in not restricting the jury's consideration to damages resulting from appellant's negligence and (3) that the court erred in refusing to grant a new trial because appellee's attorney advised the jury, after it had returned the verdict, that appellant's insurance company would have a representive approach them to learn the nature of their deliberations and that, if they wanted to keep their deliberations secret, they could refuse to talk to him.

Relative to appellant's first point, that the court erred in not instructing the jury in connection with the damage issue that the preexisting congenital condition of Washburn's neck and low back could not be considered in determining damages, except as it might have been aggravated by the injury, issue 50 inquired what amount of money would compensate Washburn for the injuries sustained at the time and place and on the occasion made the basis of the suit. The jury was instructed in detail what they might consider in determining Washburn's damages. Appellant objected because it failed to instruct the jury not to consider such preexisting conditions except as aggravated. The objection was overruled. It was undisputed that prior to his injury Washburn had congenital abnormalities in his neck and low back. Said conditions were closely related to his complaints upon the trial. Appellee's recovery must be based upon the testimony of appellee and his doctor as to the condition of Washburn's neck and low back after the collision. The medical witnesses for both parties admitted the existence of an excessive curve in Washburn's low back. Appellant's doctor was of the opinion that this condition was congenital, that he was born that way. Appellant's doctor testified that in his opinion it was not affected by his injury. Appellee's doctor had the opposite opinion. Appellee's doctor testified that, in his opinion, as a result of the collision, Washburn had 'lots of muscle spasm', small tears of the muscle and ligaments that help support his neck, and a severe strain of similar parts in his low back; that such conditions were probably caused by the wreck and that muscle spasm in the low back increased its congenital curvature. He testified that he examined Mr. Washburn shortly before the trial and that the objective symptoms he found at that time were primarily limitation of motion of the neck and 'increased' curvature of the low back. There was testimony that prior to his injury Washburn was a healthy man, able to do hard work as a carpenter without pain and that he could not now do so thereafter....