Davis v. Davison

905 S.W.2d 789, 1995 Tex. App. LEXIS 2159, 1995 WL 516885

• Court: Court of Appeals of Texas
• Decided: August 31, 1995
• Docket: 09-94-309 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

Paula Davis brought suit against Billy Ray Davison, d/b/a Davison’s Conoco. Ms. Davis alleged she sustained an injury when burned by hot water. She alleged a Davison employee’s negligence proximately caused her injury. Davison alleged the individual was not his employee, was not negligent and Ms. Davis was negligent. A jury found the individual was Davison’s employee, acting in the scope of his employment and the employee and Ms. Davis were each 50 per cent negligent. The jury was also asked to find “[w]hat sum of money, if paid now in cash, would fairly and reasonably compensate Paula Davis for her injuries, if any, that resulted from the occurrence in question.” They were instructed to consider only past physical pain and mental anguish and past medical care. The jury returned its verdict with this question unanswered. The trial judge, after an unrecorded bench conference, approached the issue in this manner:

The Court: Is that your answer to the Question No. 3?

Presiding Juror: Yes, sir.

The Court: In other words, no number in there?

Presiding Juror: No, sir.

The Court: I’m going to receive that as the jury’s verdict as a answer of zero. Is that the intent of the jury?

Presiding Juror: Right.

The Court: Then I’m going to receive the verdict and order it file [sic] and excuse you from service in this case.

Ms. Davis alleges two points of error: Point of error one alleges “[t]he Trial Court erred in accepting the jury’s non-answer to the damages question as an answer of ‘zero’ and in entering a take-nothing judgment thereon instead of returning the jury to its deliberations upon discovery of the non-answer to the damages question.” Point of error two alleges “[t]he non-answer to the damages question was construed as an answer of ‘zero’ and is contrary to the overwhelming weight and preponderance of the evidence resulting in the verdict which is clearly wrong and unjust.”

The first point has not been preserved for review. Ms. Davis did not object, at least on the record, to the incomplete verdict, nor did she request the jury re-deliberate. This failure to object is fatal. Fleet v. Fleet, 711 S.W.2d 1, 3 (Tex.1986). This point is overruled.

The second point is the essence of the appeal, although it was not the essence of the lawsuit.¹ Davison argues the jury was entitled to answer question three “zero” under either of two scenarios; Ms. Davis was not injured or she suffered no damages. Insofar as her injury is concerned, Ms. Davis testified she got burned on her neck. Medical records were introduced, without objection, which stated: “PE: 4x6 area of redness, right side of neck” and “Imp: 1st and 2nd Degree Bums, Right Side of Neck.” In cross examination of Ms. Davis the following exchange occurred:

Q I believe you had — was it first and second degree burns, is that what the hospital said?

A Yeah, that was it.

Q Do you remember stating that you had third — telling—telling my office that you’d had third degree bums?

A Yes.

Q Okay. Why did you tell us third degree bums?

A Well, I thought that’s what they said.

Q Okay, So then later you — you learned that it was just first and second degree?

A Yes, sir.

Davison’s counsel, in jury argument stated: “Mrs. Davis got burned. She’s got medical records where she was treated for a bum.”

Bills from the Newton County Hospital and McDuffie’s Pharmacy were introduced without objection. Davison now argues these are not competent evidence because they were not offered with a proper affidavit and there is no evidence they were reasonable and necessary. However, Davi-son made no objection to the evidence nor to the jury question upon this ground. He cannot now complain on appeal. Davison’s counsel, in jury argument stated: “Ladies and gentlemen, on the damages, there’s no doubt she incurred her medical bills of $113.”

Since Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App.—Beaumont 1972, writ ref'd n.r.e.), see also Williamson v. M & E Food Mart, Inc., No. 2, 731 S.W.2d 740, 741 (Tex.App.—Beaumont 1987), remanded for settlement, 742 S.W.2d 276 (Tex.1987); Bazzano v. Ware, 530 S.W.2d 650, 651 (Tex.Civ.App.—Beaumont 1975, writ ref'd n.r.e.), this court has consistently held that jury findings of “no injury” or “0” damages are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust when there is objective evidence of an injury. Although the physician did not testify his medical records clearly show objective signs of a bum on Ms. Davis’ neck plus notations as to the severity of the bums. While Mr. Davison testified he was unaware of Ms. Davis’ bums, he agreed she was at his station around six-thirty or seven p.m. and there was hot steam or water coming from the vehicle. The medical records indicate Ms. Davis arrived at the emergency room at seven thirty that evening. There is no evidence she sustained the bums at any time or place other than Mr. Davison’s service station. Furthermore, the time sequence is consistent with Ms. Davis’ receiving the bums from the hot steam or water at Mr. Davison’s station.

The bum injury is based on objective findings by the emergency room physician as well as Ms. Davis’ subjective description of pain. Davison produced no expert medical testimony to controvert the treating doctors’ objective findings of injury to the neck. All of the evidence in the record regarding the period of time following the accident was that Ms. Davis had burned her neck. The injury was supported by objective medical findings. There is no explanation for this injury other than that it was the result of the hot steam or water. Although the injury was not permanent, there was an injury that resulted in pain and medical expense. The jury’s failure to find any damages is contrary to the overwhelming weight and preponderance of the evidence.

Point of error two is sustained. The judgment of the trial court is reversed and remanded for new trial.

REVERSED AND REMANDED.

1 . Davison's main thrust was whether the individual was an independent contractor or any employee. The secondary issue was the comparative negligence.