Tyler Mirror & Glass Co. v. Simpkins, 220
| Decision Date | 13 October 1966 |
| Docket Number | No. 220,220 |
| Citation | 407 S.W.2d 807 |
| Court | Texas Court of Appeals |
| Parties | TYLER MIRROR & GLASS COMPANY et al., Appellants, v. Ollie SIMPKINS et ux., Appellees. . Tyler |
Ramey, Brelsford, Flock & Devereux, Mike Hatchell, Donald Carroll, Tyler, for appellants.
Howard S. Smith, Smith, Johnson & McDowell, Sulphur Springs, Woodrow H. Edwards, Mount Vernon, for appellees.
Ollie Simpkins and his wife, Zodie, brought this suit against Tyler Mirror & Glass Company and its employee, Alan Mauldin, for damages allegedly sustained by Zodie Simpkins when she was struck by a truck driven by defendant Mauldin. Several acts of negligence on the part of defendant Mauldin were alleged to be the proximate cause of various injuries sustained by Zodie Simpkins on the date in question. Plaintiffs sought damages against defendant Mauldin individually and from Tyler Mirror & Glass Company under the doctrine of respondeat superior.
The case was tried to a jury which found the primary negligence issues against the defendants and found contributory negligence and all other issues for the plaintiffs. On the basis of these answers and the jury findings of damages, the trial court awarded damages to plaintiffs in the sum of $17,514.00.
Appellants do not raise any issue on this appeal as to their liability, but predicate their appeal solely upon errors relating to the court's charge regarding damages.
The trial court's charge contained the standard type charge on damages which reads as follows:
'SPECIAL ISSUE NO. 7
'What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence will fairly and reasonably compensate plaintiffs for the damages, if any, suffered by them from the injuries, if any, of Zodie Simpkins directly and proximately caused by the incident on August 14, 1963?
'Answer in dollars and cents, if any.
'ANSWER: $14,778.00
'In fixing the above amount of damages, if any, you will consider the following things and no other:
'(1) The reasonable value of loss of capacity, if any, of Zodie Simpkins to perform her household duties in the past and the reasonable value of the loss of capacity, if any, which Zodie Simpkins will in reasonable probability suffer in the future to perform her household duties by reason of the incident on August 14, 1963;
'(2) Fair and reasonable compensation for the loss of earnings, if any, suffered by Zodie Simpkins from August 14, 1963 to date;
'(3) The reasonable present cash value of such loss, if any, of earning capacity she will in reasonable probability sustain in the future;
'(4) The physical pain, if any, and the mental anguish, if any, which Zodie Simpkins has suffered from August 14, 1963 to date; and
'(5) The physical pain, if any, and the mental anguish, if any, which Zodie Simpkins will in reasonable probability suffer in the future.'
Feeling that there was no evidence connecting many of the physical conditions in evidence with the accident in question, appellants timely requested in writing the following exclusionary instructions in connection with the above damage issue, all of which were refused by the trial judge:
'You are instructed, however, that in arriving at your answer to the above and foregoing Special Issue you must not take into consideration or allow anything for the cataract of the right eye.'
'You are instructed, however, that in arriving at your answer to the above and foregoing Special Issue you must not take into consideration or allow anything for high blood pressure.'
'You are instructed, however, that in arriving at your answer to the above and foregoing Special Issue you must not take into consideration or allow anything for gall bladder trouble.'
'You are instructed, however, that in arriving at your answer to the above and foregoing Special Issue you must not take into consideration or allow anything for colon trouble.'
The jury returned the verdict finding damages as follows: (1) $14,778.00 for the damages sustained by Mrs. Simpkins in the collision, and (2) $1,400.00 for further hospital, medical and drug expenses in response to Special Issue No. 9.
Neither pleadings nor proof by either party attempted to make the case one in which the accident aggravated a pre-existing condition or infirmity.
We will set forth a summary of the pertinent testimony bearing on the question before this court.
The injuries alleged to have been sustained by Zodie Simpkins were 'a concussion and lacerations across the right side of her head; injuries to her right eye which has resulted in the complete loss of sight of the same; her left arm was broken; chest injuries including fractures and injuries to her rib cage; shoulder injuries and cervical spinal injuries; as well as injuries and damage to her nerves and entire nervous system, and also numerous bruises and abrasions about her entire body.'
Essentially, appellants contend that four separate injuries or conditions--loss of eyesight, colon trouble, gall bladder trouble and/or high blood pressure--alluded to in the testimony of various witnesses were not shown by any evidence to be causally related to the accident in question and should have been excluded from the jury's consideration. Briefly, the evidence relating to these conditions is as follows:
Loss of Eyesight
Appellees specifically pleaded that Mrs. Simpkins lost the sight of her right eye as a result of the accident in question. As the evidence later developed, the specific contention was that the accident caused a traumatic cataract to form in her right eye, essentially blinding the eye to all except bright light.
Mrs. Simpkins herself testified that after the accident her right eye was 'sticking out' and hurting, and that she told the doctors about this. She also testified that there was nothing wrong with her before the accident that she knew of and she was not aware that she did not have any vision in her right eye before the accident, but that she was not able to see out of her right eye after the accident. This is essentially all the testimony Mrs. Simpkins was able to give relating to her alleged loss of eyesight.
Testimony from the several doctors who treated Mrs. Simpkins in the hospital and after she was released did, in fact, confirm that she had a traumatic cataract in the right eye. But, this is all that the medical testimony reveals about the cataract. None of the doctors stated that within reasonable medical probability the traumatic cataract was, probably was, or even could have been caused as a result of the accident in question. In fact, the testimony from the doctors who treated Mrs. Simpkins immediately after her accident is to the effect that the traumatic cataract could not have been caused by the accident in question.
Dr. McCarthy, who examined Mrs. Simpkins when she arrived at the emergency room at Medical Center Hospital in Tyler, Texas, (approximately 6:30 p.m. on the day of the accident) testified that upon his initial examination he noticed a traumatic cataract in the patient's right eye, and that, at no time, from the date of his initial examination to the time she was discharged from the hospital, did Mrs. Simpkins complain about pain in the right eye or inform him of any recent change of vision in that eye. Nor did Dr. McCarthy administer any treatment to Mrs. Simpkins in regard to her right eye. There is testimony that the accident occurred at approximately 5:00 p.m.
Dr. Steph, who was called in by Dr. McCarthy to examine Mrs. Simpkins, confirmed that there was a traumatic cataract or opacification of the lens in her right eye, but he did not ever think it to be of recent origin.
All the medical testimony in the record indicates that a traumatic cataract is caused by some injury to the eye--either a blunt injury or a puncture injury, and that it takes weeks, months, or even a year for such a cataract to form from a blunt injury. There is no testimony as to how long it would take a traumatic cataract to form from a puncture injury, but this question would appear to be academic because Dr. Steph and Dr. McCarthy positively testified that there was no direct injury to or about Mrs. Simpkins' right eye when they examined her, nor any cut, bruise, scratch, laceration, contusion, abrasion or penetration of the area in and around the right eye.
Dr. Lacey, appellees' main medical witness, testified to discovering and treating Mrs. Simpkins for high blood pressure, colon trouble and gall bladder trouble. Dr. Lacey did not testify that these conditions were caused, could have been caused, or were the natural result of the accident in question. Appellants argue, therefore, that Dr. Lacey's testimony in regard to colon trouble, gall bladder trouble, and high blood pressure stands for nothing more than the fact that appellee was suffering from these conditions after the accident.
Appellants point out that the existence of these conditions is important, however, because Dr. Lacey did testify that Mrs. Simpkins would not be able to perform housework or any gainful employment requiring stooping or lifting, because she was dizzy and not able to balance herself properly. The reason she suffered dizziness, according to Dr. Lacey, at times was because of her high blood pressure and, at times, because of the colon and gall bladder trouble. Dr. Lacey further testified that dizziness and loss of balance were not always simultaneously present and that loss of balance could be caused by Mrs. Simpkins' head injury. He could not, however, state that this was anything more than a possibility, because he was not a specialist and could not run proper tests to determine if this were true.
On this appeal the appellants first contend that 'The trial court erred in refusing to include in the Court's Charge appellants' requested exclusionary instructions, because,...
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