Wharf Cat, Inc. v. Cole, 1282

• Decision Date: 13 April 1978
• Docket Number: No. 1282,1282
• Citation: 567 S.W.2d 228
• Parties: WHARF CAT, INC., et al., Appellants, v. Clarence E. COLE and Wilma Cole, Appellees.
• Court: Texas Court of Appeals

Page 228

567 S.W.2d 228

WHARF CAT, INC., et al., Appellants, v. Clarence E. COLE and Wilma Cole, Appellees.

No. 1282.

Court of Civil Appeals of Texas,Corpus Christi.

April 13, 1978.

Rehearing Denied and Supplemental Opinion on Filing

Remittitur May 18, 1978.

Second Rehearing Denied June 8, 1978.

J. Robert McKissick, R. W. Woolsey, Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellants.

Jack K. Dahlberg, Jr. Guy Allison, Corpus Christi, for appellees.

OPINION

BISSETT, Justice.

This is a suit for damages brought by Clarence E. Cole and wife, Wilma Cole, for personal injuries sustained by them while passengers aboard the vessel WHARF CAT, which was owned and operated by the defendants Wharf Cat, Inc., William J. Sheppard, Edward Sheppard, and Anton T. Mathews, Jr. Trial was to a jury. All issues were answered against defendants. Judgment in the amount of $162,250.00 was rendered against the defendants, who have appealed.

Defendants do not complain of the jury's findings of negligence which proximately caused plaintiffs' injuries. The only complaints on appeal are directed to the jury's answers to Special Issue No. 8, subsections (a) through (f). The jury, in its answers to the several elements of damages inquired about, found that the following amounts of money would reasonably compensate Cole for his injuries, to-wit:

8(a) $50,000.00 for "physical pain and mental anguish in the past";

8(b) $25,000.00 for "physical pain and mental anguish which, in reasonable probability, he will suffer in the future";

8(c) $45,000.00 for "loss of earning capacity in the past";

8(d) $25,000.00 for "loss of earning capacity which, in reasonable probability, he will sustain in the future";

8(e) $4,000.00 for "physical impairment in the past";

8(f) $10,000.00 for "physical impairment which, in reasonable probability, he will sustain in the future".

The awards by the jury are attacked by "no evidence", "factual insufficient evidence" and "against the great weight and preponderance of the evidence" points. In addition, the defendants complain that each award is "too large so as to be inequitable and requires that the Court (of Civil Appeals) direct a remittitur of the same in whole or in part".

The defendants' prayer, as stated in their brief, reads:

". . . Defendants pray that the Judgment of the Trial Court be modified to provide that Plaintiffs recover no more than the sum of $19,250.00, and as so modified, affirmed."

We will review the record in its entirety. The "evidence" points will be disposed of in accordance with the guidelines set out by Justice Calvert in 38 Texas L.Rev. 359. In disposing of the "remittitur" points, an appellate court, in determining whether the amount of damages awarded by a jury is excessive, considers only the evidence that is favorable to the award. Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex.Civ.App. Corpus Christi 1968, writ ref'd n. r. e.). On appeal, the findings by the jury will not be disturbed on the ground of "excessiveness" if there is any probative evidence to sustain the award, unless the record shows that the minds of the jurors were so controlled by passion, prejudice or bias as made them unwilling to consider the case on its merits, to the end result that the award is so excessive that it shocks the conscience of the Appellate Court. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962 (Tex.Com.App.1937, judgment adopted), reaffirmed in Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950).

An appellate court (as well as a trial court), in deciding whether an award of damages is so excessive as to require a remittitur, is governed by the standard set forth in Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916), and restated in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959), as follows:

"All the Court of Civil Appeals can do, and all that is required of it to do . . . is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess . . . (Having) decided upon an amount that would be reasonable compensation . . . it should authorize a remittitur of the excess . . . in accordance with its sound judgment."

The accident made the basis of this lawsuit occurred on February 13, 1973, while Clarence E. Cole, hereinafter referred to as "Cole" was injured when the vessel "WHARF CAT", a fishing boat based in Port Aransas, Texas, collided with a large wave at the entrance of the Corpus Christi Ship Channel, near the end of the jetties. The collision was of such force that Cole was torn from the railing which he was holding and thrown to the deck. He sustained serious injuries to his back.

On the date of the accident, Cole was 65 years of age, in apparent good health, and had retired from business in 1968, some four or five years before the happening of the occurrence in question. After retirement in 1968, he and Mrs. Cole traveled with a travel trailer, spending the winter months, beginning about January of each year, in South Texas; went to the lake area in Minnesota for the summer, then returned to their home in Lincoln, Nebraska, for a few weeks in the fall before returning to South Texas again shortly after the first of the year. This lifestyle, or pattern, was one which they had followed consistently during the years following Cole's retirement up to the date of the accident, and one which they had followed every year since the accident in February, 1973.

Following the accident, Cole was taken to Dr. James C. Sharp, Sr., in Port Aransas, who, after examination, sent him to a Corpus Christi Hospital, where he remained for nine days. Since that time, he has not been in a hospital with any back problems. He has not had any surgery. During the balance of the year 1973, he saw a doctor in April. In 1974, he went in the spring and the fall for x-rays and an examination and saw a doctor one time in 1975 for an examination. In the year 1976, he was examined by a doctor at the request of counsel for the defendants.

Cole testified that he "couldn't feel anything" immediately after he was thrown to the deck of the boat; that at the doctor's office he began to feel pain; and that he had never "had any kind of pain like that before". Dr. Sharp described the pain suffered by Cole in these words:

". . . At the time I saw him he was in apparently excruciating pain . . . ."

Cole's injury was diagnosed as a compression fracture of a vertebra. Dr. Sharp testified in detail concerning vertebra and compression fractures. He said that such fractures are serious and painful; that the accident caused an immediate destruction of thirty per cent of the affected vertebra; that from the date of the injury in February, 1973 until the trial, which began on June 6, 1977, the destruction showed a progression from thirty per cent to fifty per cent; that the injury was permanent, which would not get any better, and could get worse, and that nature, by the time of trial, had fused Cole's backbone, so that surgery would not be required, but that the natural fusion had developed calcification in the area of the crushed vertebra.

Dr. Wright, the orthopedic surgeon, who attended Cole while he was in the hospital, prescribed a steel brace which Cole wore for about three and a half months following his release from the hospital. About three months thereafter he was fitted with a back brace "similar to a corset", but it made Cole "sore", and he used it only when his "back began bothering me too much". Approximately a year after the accident, Cole began to experience pain in his legs when he attempted to "do some lifting motions". When casting while fishing, Cole said that his arm hurt and that it was "like something that pulls a string or something up back over my shoulder", which he did not experience before the accident. Cole further stated that he has intermittent pain in his back which comes and goes, and that his back bothers him when he sits or stands in one position too long. He further testified:

"Q What percentage of the time in an average waking day would you say your back hurt you now?

A Oh, I would say thirty percent."

He further testified that his enjoyment of life has been impaired because of the physical problems he sustained in this incident. He was not physically able to do the hunting or fishing that he had done previously. He had not been fishing in two years because of his inability to cast or pick up an ice chest without pain. The hunting activities he attempted in 1974 were curtailed because he could not walk over the frozen ground because of pain. The disability that he has with regard to sitting and walking has made these activities impossible. The trips in the automobile from Minnesota and Nebraska to Texas since the accident required approximately twice as long as was the case prior to the accident because of the frequent stops that were required for him to get relief from the pain caused by sitting in one position for more than two or three hours at a time.

Cole worked for the Airport Authority in Lincoln, Nebraska for a number of years. He quit working for the Airport on June 15, 1959, and went into the construction and trucking business. He owned the business, and performed the general duties of a manager and owner of that type of business, including the dispatching, overseeing and general supervision of heavy equipment operators and truck drivers. He was also a qualified heavy equipment operator. He sold his business and retired in 1968. He kept some of the heavy equipment and trucks which he personally operated in maintaining roads to his fishing camp, which was operated by him strictly for pleasure. He sold the fishing camp and all of the remaining heavy equipment and trucks in 1969.

For the approximate nine years (1959-1968) that Cole was in business for himself, his earnings from the business grossed...