Gipson v. Wood

506 S.W.2d 321, 1974 Tex. App. LEXIS 2164
CourtCourt of Appeals of Texas
DecidedFebruary 28, 1974
DocketNo. 16262
StatusPublished

This text of 506 S.W.2d 321 (Gipson v. Wood) 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
Gipson v. Wood, 506 S.W.2d 321, 1974 Tex. App. LEXIS 2164 (Tex. Ct. App. 1974).

Opinion

PEDEN, Justice.

Personal injury suit. Defendant’s appeal from the judgment based on jury findings complains only of the award to the plaintiff of $94,500 in damages, not of the liability findings.

Appellant’s points of error assert that such damage finding is against the great weight of the evidence, is excessive, is the result of passion, prejudice and bias and that this court should grant a remittitur.

The damage issue covered past and future physical pain and mental anguish plus loss of earnings and of future earning capacity.

This case arose as a result of a collision on January 3, 1970 between the plaintiff’s car and a tractor-trailer. The impact was severe. The plaintiff received injuries to his back, neck and shoulders. He continued to work until February, 1972, when he had back surgery, at which time he was found to have a herniated intervertebral disc at the L3-L4 level and a spondylo-[322]*322listhesis at L5. The surgeon performed a laminectomy at L3-L4 and a transverse process fusion at the lumbo-sacral joint. One of appellant’s contentions is that the damage finding is excessive because the plaintiff failed to establish, the causal connection between the accident and his disc surgery. The appellee does not claim any right to recover for the spondylolisthesis.

In resolving points of error claiming that a finding is against the great weight of the evidence, we consider all of the evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). We have carefully examined the entire record in this case. We review the evidence touching on the severity of the injuries and on their causal connection with the accident but will not attempt a recital of all of it.

We first review some of the testimony of the plaintiff-appellee, Mr. Wood. He was born in 1939, is married and has three children. He has a tenth-grade education. He was in excellent physical condition before the accident in January of 1970. In 1958 or 1959 he had an accident on a motorcycle, but his back was not injured, he received no medical treatment and did not miss work as a result of it.

In 1956 or 1957 he had been sitting in the bow of a boat and had been shoved back into an ornament. It hurt his back at the time, but he did not receive any treatment for it, did not miss a day’s work, has recovered from it and did not ever have any more pain in his back as a result of it.

From 1956 to 1962 his work required him to do a great deal of heavy lifting. He helped unload boxcars. The most he remembered unloading in one day was 800 sacks of chemicals, some of which weighed as much as a hundred pounds. He often loaded 60-80 pound valves onto trucks and pallets. He had no back trouble at that time and didn’t know of any birth defects in his spine.

He went to work for Thermal Engineering in January of 1963, doing stooping, bending and heavy lifting. He worked in different departments and finally got to be a lead man. He worked 10 hours a day including Saturdays for a long time. He was still working for Thermal Engineering and was making between $9,500 and $10,500 per year when the accident happened on January 3, J970. He never did lay off a day at Thermal Engineering before the accident because of pain in his back, neck or shoulders. He lifted weights as a hobby and kept himself in very good physical condition.

After the accident on January 3, 1970 he was taken to the emergency room of a hospital, was examined, had x-rays taken and was referred to a Dr. Maness who took more x-rays, examined him, prescribed medicines and gave him a course of treatment. He went in for therapy and medicine about every two weeks. He was sent in the fall of 1970 to a Dr. Medley, who examined him for about five minutes and sent him back to Dr. Maness.

Dr. Maness discussed hospitalization with him in November of 1970 but he told the doctor he couldn’t afford to take off work because he had no money saved and had a new home.

He took a lot of aspirin and tried to live with the pain. His back seemed to get worse and his left leg started giving way; it had never done this before the accident. He had taken exercises to help his back, but they hadn’t helped. He went to Dr. Barnhart in January, 1972. He didn’t do anything to hurt his back while treated by Dr. Maness. Dr. Barnhart ran a myelo-gram on his back, then operated on it on February 14, 1972. He had worked up until two days before that.

Thermal Engineering went out of business in June of 1972. He could hardly work after the operation until December, 1972; then he began working as a mechanic on cars he bought and sold. He does this because he can stop for a while when his back hurts; he makes an average of about $125 a week at it. His back still [323]*323hurts. He has to get down on his knees at the end of the day. When Thermal Engineering went out of business he tried to get a job as a lead man at other air conditioning companies but couldn’t. He wasn’t able to handle the work required to start out at the bottom.

On cross-examination Wood testified that in 1971 he had been reclassified from lead man to fabricator, and he had been doing that work up until he was operated on. It is heavier work than that of a lead man, and it involved using his back in bending and lifting. He missed only one day’s work because of this accident in the two years after it happened. During 1971 he didn’t see any doctors for his back, neck or shoulders.

Thermal Engineering didn’t go out of business, but it did cut back from 130 or 140 men to just a handful.

Dr. Gerald Maness is a medical doctor. He testified by deposition that he examined Wood on January 6, 1970, three days after the accident. Wood complained of pain in his left shoulder, left cervical muscles and lumbar spine. He denied earlier injuries to those areas. He continued to complain of pain in those areas in later visits. There was tenderness and muscle spasm in the posterior cervical muscles radiating into his shoulders, especially on the left. The lumbar spine was straightened. There was muscle spasm adjacent to the spine, especially on the left.

These symptoms decreased, and there was no objective evidence of muscle spasm or tenderness on November 23, 1970. X-rays taken at his request did not show significant abnormality except in the left shoulder. His diagnosis, based on history, physical examination and x-rays, was that Wood had “multiple abrasions and contusions, cervical sprain, sprain of his left shoulder and a lumbar sacral sprain.”

He saw Wood 13 times and discharged Wood as a patient on November 23, 1970, because he had on many occasions asked Wood to quit work to allow his injuries to respond better to therapy or to enter the hospital for further studies. On every occasion Wood refused to do so on the basis that he could not afford to lay off and had to work in spite of medical advice. When he was released he was instructed that if the pain and muscle spasm increased he was to return for follow-up treatment. Dr. Maness said he thought at that time that it would be a matter of time for Wood’s symptoms and objective findings to subside. His prognosis was good. There was still pain, but it was bearable. While under Dr. Maness’ care, Wood was disabled, but because of economic pressure he refused to follow the doctor’s advice to lay off work.

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Related

Garza v. Alviar
395 S.W.2d 821 (Texas Supreme Court, 1965)

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Bluebook (online)
506 S.W.2d 321, 1974 Tex. App. LEXIS 2164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gipson-v-wood-texapp-1974.