Armour & Co. v. Tomlin

42 S.W.2d 634
CourtCourt of Appeals of Texas
DecidedOctober 8, 1931
DocketNo. 1119
StatusPublished
Cited by22 cases

This text of 42 S.W.2d 634 (Armour & Co. v. Tomlin) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Armour & Co. v. Tomlin, 42 S.W.2d 634 (Tex. Ct. App. 1931).

Opinion

GALLAGHER, C. J.

Appellants, Armour & Co., a corporation, and Cecil Wise, prosecute this appeal from a judgment of the district court awarding ap-pellee, Mrs. Myrtle Tomlin, damages for personal injuries sustained by her as the result of a collision between her car, which she was driving at the time, and a truck owned by said corporation and operated by said Wise, and also for damage to her automobile in such collision. The case was submitted to the jury on special issues, in response to which they found that the corporation’s said employee was negligent in the operation of said truck; that such negligence was the proxi-. mate cause of the collision between the samé and appellee’s car; and that such collision was the proximate cause of the injury to her. The jury further found that the sum of $4,843 would reasonably compensate appellee for her mental and physical suffering, for her dimin-' ished capacity to perform her usual household cares and duties, and for the expenses incurred for medicine, doctors, and hospital services, resulting directly and proximately from such collision. The jury also found that the reasonable cost of repairing her car was the sum of $145. The court rendered judgment on the verdict in favor of appellee Mrs. Myrtle Tomlin against appellants Armour & Co. and Cecil Wise, jointly and severally, for the sum of $4,987, with interest from date thereof, and costs of suit. Hence this appeal.

Opinion. •

Appellants assign as error the refusal of the court to submit to the jury for determination the following requested issue: “Was the physical infirmity, if any, of the plaintiff subsequent to the accident of October 2, 1928, brought about by cause or causes not directly and proximately the result of the accident in question?”

The language used in framing such speotol issue is not the language usually employed in such cases, and the exact meaning thereof is a matter of construction. Appellants and ap-pellee differ with reference .to the proper construction of the same. We think, however, that the same should be construed, and that the ordinary juror would construe the same, to inquire whether the infirmity therein referred to was caused by, or resulted from, some other cause or causes than the accident in question. The testimony shows that the rear of appellee’s car was struck by said truck with sufficient force to crush one corner of the same, tear the upholstering, and loosen the top thereon. Appellee testified that the force of the impact threw the rear cushion against her shoulders and knocked her against the steering wheel; that she immediately became excited and nervous, and suffered from shock and severe pains in her back and chest; that as sobn as she was taken home she lay down; that she suffered all night with severe pains in the back, ribs, and chest; that next morning her temperature was 101½. Appellee further testified that at that time she was forty-four years of age and in perfect health; that she had theretofore regularly performed her household duties, driven her car as occasion required, and had been active in church and social life. There was testimony that an examination of her body by a physician shortly thereafter showed no abrasions or visible bruises. Appellee testified in detail with reference to her physical condition for more than a year thereafter. The substance of such testimony was that she suffered continual pain and was confined to her bed a large part of the time; that she had alternately high and abnormally low temperature; that she was incapacitated from performing her household duties; that she decreased in weight from 135 to 82 pounds, and that she spent a part of the time in hospitals and sanitariums. Appellants do not complain of the amount awarded áppellee as damages for her physical injuries as excessive, and a more elaborate statement of her condition, subsequent to the accident, is therefore not deemed necessary. Appellee further testified [636]*636that prior to the accident she had never suffered from menstrual irregularity; that shortly thereafter she had hemorrhages, which continued for a period of three days; that a similar attach occurred about three months later. She further testified that prior to the trial menstruation had ceased. Appellants introduced expert testimony tending to show that the change of life affects the nervous system and produces organic disturbances ; that such nervous condition sometimes creates vomiting and a lack of appetite, or on the other hand, an abnormal appetite; that fluctuations in temperature and loss of weight under such conditions are not infrequent. Appellants also introduced an expert witness who testified that he found no evidence of any injury to the nervous system, and that, in his opinion, appellee was suffering from mental depression, such as is sometimes manifested during the menopause.

The court, in submitting the case to the jury, authorized the recovery of damages for only such pain and suffering and lack of capacity 'to labor, and medical and hospital expenses incurred, as resulted directly and proximately from said accident. Appellants contend that having pleaded a general denial, and having introduced the expert testimony above recited, they were entitled, under the rule announced in Fox v. Dallas Hotel Co., 111 Tex. 461, 475, 240 S. W. 517, to have the jury determine, as the converse of appellee’s contention, whether such pain and suffering, lack of capacity to labor, if any, and medical and hospital expenses incurred, resulted from appellee’s change of life and disorders incident thereto. ■ The right to have a properly framed issue presenting such contention submitted to the jury for determination is conceded by appellee.' Appellee, however, invokes the further rule announced by the Supreme Court in that case, that the issue or issues so submitted should constitute a complete defense to her demands, and that the same should be restricted to the presentation of issues specifically raised by the pleadings and evidence.

Appellee’s first contention in 'this connection is that the issue as requested is not sufficiently comprehensive to cover all the elements of personal injury or damage raised by the testimony. All such elements of injury or damage are attempted to be covered in the requested issue by the expression, “physical infirmity * * * subsequent to the accident.” The Standard Dictionary defines “infirm” as “lacking in bodily or mental strength; feeble or relaxed, as from age or disease.” It also defines “innrmity” as: “(1) physical, mental or moral weakness or flaw; enfeebling disease; (2) the state or quaucy of being infirm physically, mentally or morally; debility; infirmness, as the infirmity of age.” We seriously doubt whether an ordinary jur- or would consider that excitement, nervousness, shock and mental and physical pain and ■suffering occurring at the very time of the accident and immediately thereafter, as testified by appellee, were intended to be covered by the general term “physical infirmity,” and the still more general expression, “subsequent to the accident.” We need not, however, determine thi^ question, in view of the conclusion reached with reference to appellee’s further contentions hereinafter discussed.

We think the language used in framing such issue is further objectionable, in that it nowhere requires that the cause or causes of the physical infirmity therein inquired about should have been, within legal terms, the proximate cause or causes thereof. It only requires that such cause or causes should not in themselves have resulted proximately from the accident.

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42 S.W.2d 634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armour-co-v-tomlin-texapp-1931.