Davis v. Moreno

579 S.W.2d 309, 1979 Tex. App. LEXIS 3312
CourtCourt of Appeals of Texas
DecidedMarch 8, 1979
DocketNo. 1374
StatusPublished
Cited by1 cases

This text of 579 S.W.2d 309 (Davis v. Moreno) 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
Davis v. Moreno, 579 S.W.2d 309, 1979 Tex. App. LEXIS 3312 (Tex. Ct. App. 1979).

Opinion

OPINION

NYE, Chief Justice.

This is a personal injury suit arising out of an automobile intersection collision. The suit was instituted by Jose R. Moreno and his son, Ruben Hugo Moreno, against James Patton Davis. After a non-jury trial, the trial court entered judgment awarding damages to Jose Moreno for the reduction in the market value of his vehicle and for medical expenses and lost wages incurred on behalf of his son. The trial court also awarded damages to Ruben Moreno for physical pain and suffering. Defendant Davis perfected his appeal to this Court.

The plaintiffs alleged that on the date of the accident in question, Ruben Moreno was driving a pickup truck owned by his father which was struck by a vehicle owned and operated by the defendant. The petition contained allegations of the defendant’s negligence and proximate cause. The plaintiffs also alleged, in essence, that a ■doctor’s examination conducted two days after the accident revealed that plaintiff Ruben Moreno was found to have an enlarged spleen; that the enlarged spleen was either caused by the accident in question or was so aggravated by it to such an extent that his normal work activities had to be restricted for several weeks; and that as a proximate result of the collision in question, he sustained physical pain and mental suffering. In accordance with these allegations, plaintiffs prayed for damages.

[311]*311Defendant Davis filed a general denial and also specifically alleged that the personal injuries of Ruben Moreno were the result of his previously existing enlarged spleen and “that the accident in question in no way aggravated or contributed to the plaintiff’s pre-existing disease or condition.”

At the close of the evidence in non-jury trial, the trial court entered judgment awarding Ruben Moreno the sum of $1,500.00 and his father the sum of $1,173.00. In support of its judgment, the trial court filed numerous findings of fact, in relevant parts, as follows: 1) that immediately prior to the collision in question defendant was negligent; 2) that such was the proximate cause of the collision in question and of the resulting personal injuries and damages; 3) that plaintiff son received bodily injuries; 4) that due to such injuries, he lost wages in the sum of $750.00; 5) that due to the injuries he experienced physical pain and that $1,500.00 would fairly compensate him for such physical pain; 6) that plaintiff father expended $323.00 in medical care and drugs on behalf of the minor son; and 7) that plaintiff father’s pickup truck was decreased in value by $100.00 as a result of the occurrence in question.

The defendant timely filed a request for additional and amended findings of fact and conclusions of law. In his motion, the defendant requested the trial court to add the following finding: “that prior to the collision in question, Ruben Hugo Moreno (plaintiff son) had an enlarged spleen.” The defendant also requested the trial court to amend five of its findings of fact. These requested additional and amended findings of fact were not acted upon by the trial judge. During oral argument, the defendant stated his theory of the case to be that all of the plaintiffs’ injuries and damages, (other than damages to the automobile), were attributable to the plaintiff’s enlarged spleen and not to the accident in question. In support of this theory, the defendant brings forward nine interrelated points of error on appeal.

His major appellate complaint (point of error one), is that the trial court erred in refusing to find that prior to the collision in question, Ruben Moreno had an enlarged spleen. Although this point of error complains only of the refusal of the trial court to make this specific finding, defendant’s general supporting arguments also attack the trial court's failure to adopt his five proposed amended findings. Defendant argues that the trial court’s refusal to make the particular finding as requested “. . . constitutes a finding in and of itself and is tantamount to a finding against the requested contention.” Citing Thompson v. Lee Roy Crawford Produce Co., 149 Tex. 357, 233 S.W.2d 295, 297 (1950); Sauer v. Johnson, 520 S.W.2d 438, 441 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.). As we understand defendant’s supporting arguments under this point, his position is that the trial court’s judgment must be reversed because: 1) the trial court found, in effect, no aggravation of a pre-ex-isting condition; and 2) there is no evidence, or in the alternative, insufficient evidence (points of error two through eight), to support the trial court’s specific findings that the accident alone caused the plaintiff son’s injuries or damages. Implicit in defendant’s supporting arguments is the assumption that the requested findings constituted controlling, material issues in this case. The first point of error is without merit.

As a general rule, the trial judge, upon proper request, is only required to make findings on ultimate, controlling and material issues. He is not required to make findings upon matters which are adequately covered by findings already made, upon evi-dentiary matters, or upon every other controverted issues of fact. T. Anchor Corp. v. Travarillo Assoc., 529 S.W.2d 622 (Tex.Civ.App.—Amarillo 1975, no writ); Moore v. Campbell, 254 S.W.2d 1018 (Tex.Civ.App.—Austin 1953, writ ref’d n. r. e.); Wade v. Taylor, 228 S.W.2d 922 (Tex.Civ.App.—Amarillo 1950, no writ); Plaza Co. v. White, 160 S.W.2d 312 (Tex.Civ.App.—San Antonio 1942, writ ref’d).

In Dallas Railway & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (1938), our [312]*312Supreme Court held, in effect, that the existence of a pre-existing condition is not a controlling issue in a personal injury suit based upon negligence. The court stated:

“No purpose would have been served by submitting an issue to the jury on the disputed fact question of whether Mrs. Ector was suffering from a prior kidney disorder. An answer to that question would have determined nothing.”

When raised by the evidence, the defendant in a jury tried case is entitled to request and receive an instruction in conjunction with the damage issue which affirmatively instructs the jury to exclude all damages resulting solely from the pre-exist-ing condition and/or to allow damages connected to a pre-existing condition only to the extent that the occurrence in question resulted in an aggravation of such pre-ex-isting condition. See Dallas Railway Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (1938); Dellinger Inc. v. McMillon, 461 S.W.2d 471 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.); 1 Texas Pattern Jury Charges, §§ 11.11, 11.12 (1969).

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Bluebook (online)
579 S.W.2d 309, 1979 Tex. App. LEXIS 3312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-moreno-texapp-1979.