Dodge v. Watts

876 S.W.2d 542, 1994 Tex. App. LEXIS 1153, 1994 WL 186450
CourtCourt of Appeals of Texas
DecidedMay 16, 1994
DocketNo. 07-93-0116-CV
StatusPublished
Cited by6 cases

This text of 876 S.W.2d 542 (Dodge v. Watts) 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.

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Dodge v. Watts, 876 S.W.2d 542, 1994 Tex. App. LEXIS 1153, 1994 WL 186450 (Tex. Ct. App. 1994).

Opinion

POFF, Justice.

Upon consideration of appellee’s motion for rehearing, we grant the motion for rehearing, withdraw our original opinion and judgment, and substitute this opinion and judgment in lieu thereof.

Appellee, Mary Ann Watts, brought suit against appellant, Deane Padgett Dodge, to recover for personal injuries arising out of a motor vehicle accident. Trial was before a jury which found appellant to be 100% at fault. The jury awarded appellee $50,000 in damages. By two points of error, appellant complains of the damage award.

At issue in this appeal is Question No. 3 in the court’s charge which we set forth below:

What sum of money, if paid now as cash, would fairly and reasonably compensate Mary Ann Watts for her injuries, if any, that resulted from the occurrence in question?
Consider the elements of damages listed below and none other. Consider each element separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you find.
[543]*543Element a. Reasonable expenses of necessary medical care.
Element b. Physical pain and mental anguish.
Element c. Physical impairment.
Element d. Reasonable cost of replacing broken glasses.
Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Mary Ann Watts.
Answer in dollars and cents for damages, if any, that were sustained in the past and that in reasonable probability will be sustained in the future.
Answer: $50,000.

In his first point of error, appellant charges that the trial court erred in submitting physical impairment as an element of damages to be considered by the jury because there was no evidence to support such submission. Appellant contends that the alleged error resulted in an excessive damage award. We do not agree with appellant’s contention. For reasons which we will express below, we find that the trial court acted properly in submitting physical impairment as an element of damages.

Appellant’s argument is novel. He contends that physical impairment damages are awarded for the loss of ability to act while pain and suffering damages are awarded for the pain endured in acting. It follows, appellant contends, that there is no physical impairment where a plaintiff can physically act but chooses not to do so because of the pain that would have to be endured in acting. In oral argument, appellant illustrated his contention with the following example based partially on the facts of the current case:

A woman is injured in an accident. She experiences great pain when she lifts her grandchildren so she doesn’t lift her grandchildren as she did before the accident. However, if her grandchildren were inside a burning house, the woman would be physically able to pick up the children and carry them to safety. The woman has experienced no physical impairment. She is only entitled to damages for pain and suffering.

In essence, appellant argues that a plaintiff must be literally unable to perform some act that he or she could do before the event sued upon to be entitled to damages for physical impairment.

Appellant bases his argument on the following language found in Green v. Baldree, 497 S.W.2d 342 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ):

It would not be proper in every personal injury case to instruct the jury that it might consider loss of earning capacity, pain and physical impairment as separate elements of plaintiffs damage. In order to be entitled to that submission the plaintiff must sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated.

Id. at 350 (emphasis added). This language has been repeated in subsequent cases as well. See, e.g., Pipgras v. Hart, 832 S.W.2d 360, 366 (Tex.App.—Fort Worth 1992, writ denied); Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ dism’d). The case law, however, has not taken these declarations to mean a plaintiff must be literally unable to perform an act to be entitled to physical impairment damages.

For example, in Southern Pacific Transportation Co. v. Harlow, 729 S.W.2d 946 (Tex.App.—Corpus Christi 1987), writ denied, 745 S.W.2d 320 (Tex.1988), a jury awarded the plaintiff, Harlow, $400,000 for future physical impairment. After reciting the language from Green v. Baldree, the court analyzed the facts of the case before it and upheld the $400,000 award. We quote from the court’s opinion:

At trial, Harlow’s wife testified that he has been depressed because he is unable to work like he used to. She said that as a result of his injuries, he has given up racquetball and the recreational activities he engaged in before the accident. Dr. Richard DeLuca testified by deposition that Harlow will always “have a good five-[544]*544percent physical impairment and loss of physical function to the whole arm which will manifest itself, not on a clinical examination, but only when exposed to extreme stresses.” Donald L. Huddle, an economist, testified that Harlow told him that he can no longer do routine car maintenance and heavy home repairs. He is still able to do yardwork, but it takes him longer. Dr. Don Baxter testified that during the course of his treatment of Mr. Harlow, the range of motion in his shoulder has improved, but he still suffers pain which he likened to a chronic condition. Appellant has a life expectancy of thirty-six more years. There was testimony that continued use of his arm for any strenuous tasks would aggravate his shoulder.

Southern Pac. Transp. Co. v. Harlow, 729 S.W.2d at 950-51.

Upon reading the above passage from Harlow we conclude that the plaintiff, Mr. Harlow, was not literally unable to play racquetball, do routine maintenance on his car, and perform heavy home repairs. Rather, it appears that Harlow experienced pain when he did those things and that, therefore, he chose not to continue those activities.

A similar case is Lawson-Avila Construction, Inc. v. Stoutamire, et al., 791 S.W.2d 584 (Tex.App.—San Antonio 1990, writ denied). In that case, one Keith School-craft 1 suffered injuries and the jury awarded him $10,000 for future physical impairment. The court of appeals found the evidence was sufficient to support the award. The pertinent portion of the court’s opinion reads as follows:

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876 S.W.2d 542, 1994 Tex. App. LEXIS 1153, 1994 WL 186450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dodge-v-watts-texapp-1994.