Walker v. Missouri Pac. R. Co.
| Citation | 425 S.W.2d 462 |
| Decision Date | 14 February 1968 |
| Docket Number | No. 1,1 |
| Parties | Wesley D. WALKER et ux., Appellants, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee. . Houston (14th Dist.) |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
John H. Holloway, Bill Howell, Houston, for appellants.
L. S. Carsey, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee.
This is a damage suit resulting from a rear-end collision. Appellants, Wesley D. Walker and wife, Marilyn Walker, sued Missouri Pacific Railroad Company for damages sustained in an automobile accident on January 31, 1964. Appellants were stopped for a left turn at Almeda and Mowery Streets in Houston, Texas, when a 1960 Chevrolet station wagon struck them hard from the rear. The vehicle of defendant, Missouri Pacific Railroad Company, was being operated at the time by James Douglas Hope, an employee of the appellee, who was at the time within the scope of his employment by the railroad.
The jury found that Hope failed to keep a proper lookout for traffic in front of him and found that he was driving his car at a rate of speed in excess of that at which a car would have been operated by a reasonably prudent person in the exercise of ordinary care under the same or similar circumstances. The jury found that each act was a proximate cause of the accident and assessed damages at $3,000.00 in favor of Mrs. Walker and $800.00 in favor of Mr. Walker. On the verdict of the jury, the trial court rendered judgment for appellants in the amount of $3,800.00. From the judgment below, Mr. and Mrs. Walker have properly perfected an appeal, attacking the judgment of the trial court on essentially four points of error, all of which were properly preserved.
The first point complains that the trial court erred and abused its discretion in admitting in evidence a letter signed by plaintiffs' attorney to Dr. Bruce Cameron, acknowledging that the attorney would be responsible for medical expenses furnished to plaintiffs. The objection is that the jury was improperly prejudiced by receiving testimony that the doctor's bill would be guaranteed by the attorney and that the admission of the letter violates the purpose and intent of the collateral source rule. It is generally true that evidence of receipt of payments from another source, such as insurance or other compensation, is inadmissible, and that such payments cannot inure to the benefit of the tortfeasor and may be considered neither as a defense nor in mitigation of damages in favor of the wrongdoer. Kainer v. Walker, 377 S.W.2d 613, 617 (Tex.Sup.); see City of Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ.App.), writ ref., n.r.e.; 17 Tex.Jur.2d 102. But here there was no collateral payment. Appellants' attorney guaranteed payment of the bill, which was shown to be for medical services to be rendered to appellants. Dr. Cameron was placed on the witness stand by appellants. On cross examination of an adverse witness, anything may be shown which might affect the witness' credibility, such as bias, interest and prejudice, and a wide latitude is allowed in such matters. Traders & General Ins. Co. v. Robinson, 222 S.W.2d 266, 269 (Tex.Civ.App.), writ ref.; McCormick and Ray, Texas Law of Evidence, Sec. 676, p. 517. We see no reason why a jury should be prejudiced or damages affected by the above evidence. Moreover, the record fails to show any objection by appellants to the admission of the letter for the limited purpose for which it was received--to show how Mrs. Walker first came to Dr. Cameron to be examined and treated . The trial court so limited the testimony by instruction. There is no reversible error. Rule 434. We overrule appellants' contention.
Appellant complains that the trial court erred in giving the following instruction in connection with special issue number 11, the damage issue pertaining to Mrs. Walker:
'In connection with this Special Issue you are instructed that you will not consider as an element of damages, nor allow anything for, any physical pain or mental anguish, If any, or loss of earnings or loss of earning capacity, If any, or medical expenses, If any, or reduced capacity to perform the work of a housewife in and about the home, If any, because of any condition or disability which was not proximately caused by the collision made the basis of this suit, except insofar as such condition or disability may have been or may in the future in reasonable probability be aggravated by such collision.' (Emphasis added)
Appellants contend that the instruction was a comment by the trial court that Mrs. Walker suffered from some condition or disability before and after the collision which was not associated with the injuries sustained in the collision by refusing the insert 'if any' after 'because of any condition' and after 'disability' in the above charge. It is further contended that there is no evidence that Mrs. Walker suffered from any previous condition which contributed to her disability from the accident and that there were no pleadings or proof to warrant such charge.
There is ample evidence in this record to show that Mrs. Walker had other aches, complaints and injuries. She complained of pain over the right hip, and there is evidence to show no connection between this injury and the automobile accident. She was nervous and a psychiatrist was recommended. She had personal problems which lead to additional tenseness and nervousness in the musculature of the neck. She had headaches which were unrelated to the accident. She fell and struck her head and knocked herself out, and she had a bruised arm which was unrelated to the accident. Dr. Cameron referred to Mrs. Walker as a 'chronic complainer' and stated that she had been hurt about three times during the course of his observations. It will be noted that the instruction does not refer to preexisting injury or condition, but it does refer to extraneous complaints and injuries not proximately caused by the collision. We believe that it would have been error for the trial court to have refused to give the instruction in view of the existing infirmities of appellant as testified to by her doctor. The various injuries were so intermingled and closely connected that the jury might have been confused and allowed for improper elements of damages in the absence of the limiting instruction. Dallas Railway & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (Tex.Com.App.), opinion adopted; Teague v. Washburn, 368 S.W.2d 229 (Tex.Civ.App.), writ ref ., n.r.e. The trial court made the...
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