Union City Transfer v. Adams

• Decision Date: 28 March 1952
• Docket Number: No. 15332,15332
• Citation: 248 S.W.2d 256
• Parties: UNION CITY TRANSFER et al. v. ADAMS.
• Court: Texas Court of Appeals

Page 256

248 S.W.2d 256

UNION CITY TRANSFER et al. v. ADAMS.

No. 15332.

Court of Civil Appeals of Texas, Fort Worth.

March 28, 1952.

Rehearing Denied April 25, 1952.

John H. Benckenstein, of Beaumont, for appellants.

Wm. H. Hamblen, of Edna, Duckett & Duckett, of El Campo, and Helm & Jones, of Houston, for appellee.

RENFRO, Justice.

Suit was brought in the district court of Wharton County by appellee Adams against appellants, Cecil and E. H. Vallee, individually and doing business as a partnership under the name of Union City Transfer, to recover damages for personal injuries and property damage sustained in a collision between appellee's passenger car and a truck owned by appellants and driven by their employee.

The jury found that appellee was injured as a result of the collision and returned a verdict in the sum of $13,000 in his favor.

Appellants' first point of error complains the verdict was excessive.

Appellee was twenty-eight years of age at the time of the collision and had a life expectancy of 38.61 years. He testified at length as to the injury to his neck and shoulder and described in detail the pain and suffering he had undergone since the time of the collision up to and including the date of trial. He was a roughneck in oil field work by trade and since the collision has had difficulty holding on to various tools and objects necessary in his work. He has lost a considerable amount of weight. He is highly nervous since the injury and has difficulty sleeping at night. He was still under medical treatment at the time of the trial. Appellee's wife substantiated his testimony as to loss of sleep and constant complaints of pain, and further testified that appellee's mind seemed to wander off and he was not dependable as before the injury. The witness, Dr. Glassman, orthopedic surgeon, testified that an examination of appellee showed three-eights inch atrophy of the left forearm and one-half inch wasting of the arm. In his opinion the injury and pain to the neck were permanent and appellee will continue to suffer partial disability.

The court instructed the jury they could take into consideration past and future physical pain, past and future mental pain and anguish, loss of earnings to date of trial, and value of loss of earning capacity in the future.

No exceptions were taken to the court's charge.

We have carefully considered all the testimony bearing on appellee's condition, as well as that hereinabove set out. There is no accurate scale for measuring the money value of damages sustained by an injured person. Each case must be considered upon its own particular facts. Bee Line Coaches v. Folterman, Tex.Civ.App., 207 S.W.2d 986; J. D. Wright & Son Truck Line v. Chandler, Tex.Civ.App., 231 S.W.2d 786.

While the verdict is large, it is not so large as to justify us in disturbing it. The record does not reflect anything to indicate the jury was influenced by passion, prejudice or other improper influence. Texas Power and Light Co. v. Martin, Tex.Civ.App., 226 S.W. 451; Hill & Hill Truck Line, Inc. v. Van Schoubroek, Tex.Civ.App., 233 S.W.2d 167. The weight to be given the testimony and the credibility of the witnesses were within the province of the jury. Viewing the evidence in the light most favorable to the verdict, as we must do, we believe the evidence was sufficient to uphold the jury finding. The point of error is overruled.

By their second point of error, appellants contend it was error for the court to inquire of the jury the state of their deliberations. The evidence on the hearing on the motion for new trial discloses that the court inquired of the jury on two different occasions their wishes concerning lunch, and late in the evening inquired if they thought they could reach a verdict 'this evening or tonight'.

Appellants confine their contention to the allegation that the communications were inquires as to the state of the jury's deliberations. There was no effort in the notes to ascertain how many questions had been answered and no inquiry as to how they stood on any issue or issues. The most that can be said is that the inquiries were made for the purpose of looking after the comfort and welfare of the jurors. The facts in the instant case readily distinguish it from Houston Electric Co. v. Lee, 139 Tex. 166, 162 S.W.2d 692, and Houston Electric Co. v. McLeroy, 139 Tex. 170, 163 S.W.2d 1062, cited by appellants. In those cases the court procured the worksheets from the jury while they were deliberating. In the instant case, we hold that the communications did not inquire of the jury the state of their deliberations. Foreman v. Texas Employers' Ins. Ass'n, Tex.Sup., 241 S.W.2d 977.

The third and fourth points presented by appellants suggest the case should be reversed because appellee's attorney repeatedly propounded questions to witnesses as to matters which he was aware they could not testify to and continually made prejudicial statements in the form of questions to witnesses relating to matters of fact and opinion foreign to the issues in the case.

The record shows that objections were sustained to most of the questions referred to and the jury instructed not to consider same. Some of the questions were not answered and the objections to some questions were overruled by the court. Appellants at no time asked for further instructions, or for a mistrial.

In some instances the mere asking of a question injects into the record improper and irrelevant matter of such an injurious or prejudicial nature which results in such harm as would require a reversal. There may also be circumstances where counsel so persistently and continuously ask improper questions that a reversal is required, even though objection has been sustained to the questions and answers.

However, no such situation appears in this case. The questions were of such nature that their harmful effect, if any, was removed by the court's instructions.

Some of the questions asked, to which the objections of a...