Joe Rone Grain Co. v. McFarland

381 S.W.2d 220, 1964 Tex. App. LEXIS 2718
CourtCourt of Appeals of Texas
DecidedJuly 9, 1964
DocketNo. 63
StatusPublished
Cited by2 cases

This text of 381 S.W.2d 220 (Joe Rone Grain Co. v. McFarland) 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
Joe Rone Grain Co. v. McFarland, 381 S.W.2d 220, 1964 Tex. App. LEXIS 2718 (Tex. Ct. App. 1964).

Opinion

SELLERS, Justice.

This is a personal injury case resulting from a collision of a heavy truck and trailer owned by Joe Rone, doing business as Joe Rone Grain Company, and operated by J. C. Vaughn, an employee, on February 4, 1963. This truck collided with a Ford car to which was attached a trailer driven by Buddy McFarland, the appellee herein. The collision occurred on a bridge over the Brazos River on U. S. Highway No. 290.

Several acts of negligence were alleged by the plaintiff, Buddy McFarland, against the driver of the truck, J. C. Vaughn, which acts of negligence were sustained by the [221]*221jury! There was a car and trailer in front of the McFarland car which was struck by the Vaughn truck and knocked hack into the McFarland car, and the Vaughn truck also hit the car driven by McFarland and caused McFarland to be thrown about in his car in such a way that he received injuries for which he brought this suit.

McFarland further alleged as follows:
“In addition to being negligence vio-lative of the standards of ordinary care the conduct of the Defendant, J. C. Vaughn, on the occasion of the collision made the basis of this suit was so reckless, and heedless, and in disregard of the rights of others as to constitute gross negligence in each and all of the particulars alleged in the foregoing paragraphs. Further, the said J. C. Vaughn was an incompetent driver, and a reckless driver, and his driving record was such that it constituted negligence, and it constituted gross negligence, and it was a conscious indifference'to the rights of others on the part of Joe Rone, individually, and doing business as Joe Rone Grain Company, to permit a large, heavy, truck to be entrusted to the said J. C. Vaughn for use upon the public highways of this state, and in this connection it would respectfully be shown unto the Court and jury by evidence offered in the nature of the records of the Department of Public Safety of Austin, pursuant to the Revised Civil Statutes of the State of Texas, that the said J. C. Vaughn has the following driving record, which evidences his incompetency to operate a large, heavy diesel truck upon the public highways of this state, and shows the conscious indifference to the rights of others on the part of the Joe Rone Grain Company in permitting him to operate the truck:

12-21-60 Speeding State of New Mexico

2-26-61 Speeding Archer County

4-16-61 Speeding State of Oklahoma

4 — 17-61 Overweight vehicle State of Oklahoma

11-06-61 Overweight vehicle State of Colorado

12-15-61 Defective tail light Jack County

12-19-61 Speeding Coryell County

5-04 — 62 Ran Red Light Denison, Texas

4-16-62 Re-examination requested Department action

7-28-62 Speeding Dickens County

12-15-62 Motor vehicle accident Hamilton County

12-15-62 Passing on right shoulder Hamilton County

1-18-63 Speeding Nolan County

1-05-63 Re-examination completed

2-04-63 Motor vehicle accident Waller County

“By reason of such gross negligence and indifference on the part of the said Joe Rone Grain Company, and Joe Rone, exemplary damages in the amount of Two Thousand Five Hundred Dollars ($2,500.00) should be assessed to punish the Defendant against entrusting such vehicles to incompetent drivers, and to warn others not to engage in such conduct, and as an example.”

The evidence in support of these allegations was limited by the court to the effect of gross negligence, and the jury found that Joe Rone Grain Company was guilty of gross negligence but refused to allow any damages as a result of such negligence.

[222]*222The jury found the damage to the plaintiff to be the sum of $22,094; the jury allowed $450 for medical expenses up to the time of the trial, and the sum of $2,100 for future medical expenses. The plaintiff tendered a remittitur of $30 in connection with the medical expense, and the court granted judgment for plaintiff on the verdict of the jury for the sum of $24,615. From this judgment the appellants have duly prosecuted this appeal.

The first assignment of error by appellants complains of the lack of evidence to support the findings of the jury to Issue No. 32, which is the jury’s damages in the sum of $22,094; and also that such finding is against the great weight and preponderance of evidence. After a careful review of all the evidence on this issue, both for and against, we have reached the conclusion that this assignment must be overruled.

The plaintiff is a 21-year-old man who, according to his evidence, received a severe whiplash and was dazed and carried to a hospital in an ambulance. He remained in the hospital- a few hours and then he was carried home. At the time of the trial, he still complained of pain in the neck and back. He was treated a number of times by an orthopedist who has had wide experience and fully qualified in this field of practice. We will not undertake to repeat here this doctor’s evidence with regard to his examination of the plaintiff, but deem it sufficient to say that in his opinion this plaintiff’s ability to work had been reduced 60%. In this connection, we will say that the doctor who saw this plaintiff shortly after the accident and who testified for the defendant denied that the plaintiff had received such injuries as that testified to by the orthopedist who testified for the plaintiff. The disputed issue in our opinion was for the jury; nor do we feel that the judgment is excessive. Mikell v. LaBeth, Tex.Civ.App., 344 S.W.2d 702.

The appellants’ next assignment is to the effect that the court erred in refusing to give appellant requested instructions in connection with Special Issue No. 33 which inquired of the jury the amount of the medical expenses of the plaintiff up to the time of the trial. The issue submitted by the court was

“What sum of money, if any, do you find from a preponderance of the. evidence to be the reasonable charges for such reasonably necessary medical services, if any, as have been rendered Buddy McFarland from February 4, 1963, to the date of this trial, proximately resulting from the injuries, if any, suffered by him as a proximate result of the occurrence made the basis of this suit ? ”

and -the requested instructions of appellants was

“In connection with Special Issue No. 33, you are instructed that you will not allow as an element of damages charges made by Dr. Solomon D. David for testifying as a witness in this case.
“You are further instructed that in fixing the amount of damages you will not allow as damages any charge that may have been made by Dr. Klanke for services rendered by him in the treating of Buddy McFarland from February 8, 1963, to March 12, 1963.”

There was no evidence offered as to any medical expense for Doctor Klanke. The only evidence offered was the charge of Doctor David: $385 and $35 for back brace and neck collar, making a total of $420 for which there was evidence to support. Therefore, the jury’s verdict of $450 was excessive to the extent of $30. This amount was remitted by the plaintiff in the trial court; and in our opinion, cured any error in this connection with the issue. Chemical Express v.

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Bluebook (online)
381 S.W.2d 220, 1964 Tex. App. LEXIS 2718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joe-rone-grain-co-v-mcfarland-texapp-1964.