Lance v. USAA Insurance Co.

934 S.W.2d 427, 1996 WL 667882
CourtCourt of Appeals of Texas
DecidedDecember 18, 1996
Docket10-95-202-CV
StatusPublished
Cited by29 cases

This text of 934 S.W.2d 427 (Lance v. USAA Insurance Co.) 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
Lance v. USAA Insurance Co., 934 S.W.2d 427, 1996 WL 667882 (Tex. Ct. App. 1996).

Opinions

OPINION

CUMMINGS, Justice.

Appellants David and Shelley Lance sued appellee, USAA Insurance Company, pursuant to an uninsured motorist insurance policy to recover for injuries resulting from an automobile accident that David had with Brandi McDonald. The record reveals that on March 15,1991, McDonald, an uninsured motorist, was driving her pick-up truck northbound on Interstate 35E near Waxahachie when Trooper Ronnie W. Applewhite, Sr., attempted to pull her over. McDonald, while driving in the inside of the interstate’s two northbound lanes, began to slow until she completely stopped her vehicle while it was still almost fully situated in the inside lane. Perceiving the dangerousness of the situation, Trooper Applewhite, who had previously activated his emergency lights, parked his patrol car on the shoulder of the outside lane and was about to exit his vehicle so that he could compel McDonald to move her vehicle onto the shoulder when he witnessed the collision between David and McDonald. David and the two or three vehicles that had been travelling in front of him in the outside lane moved to the inside lane when Trooper Applewhite drove onto the outside shoulder. The vehicles in front of David swerved back into the outside lane once they saw McDonald’s pick-up truck stopped in the inside lane. David, however, was not able to swerve back fast enough to avoid the collision.

The jury found David and McDonald each to be 50% negligent in causing the accident, but it also found that David had suffered no damages on any of his claims. The Lances bring a single point of error on appeal — that the jury’s findings of zero damages on their claims for (1) David’s past physical pain and mental anguish1 and (2) Shelley’s loss of consortium were against the great weight and preponderance of the evidence. We affirm.

In reviewing a factual sufficiency point we examine all of the evidence in the record, both for and against the judgment, in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (on rehearing); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 121 (Tex.App. — El Paso 1996, no writ). In undertaking the review, the court shall neither interfere with the jury’s resolution of con[429]*429flicts in the evidence nor pass on the weight and credibility of the witnesses’ testimony. ASAI, 932 S.W.2d at 121; see Mohnke v. Greenwood, 915 S.W.2d 585, 589 (Tex.App.— Houston [14th Dist.] 1996, no writ); Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86, 89-90 (Tex.App. — El Paso 1995, writ denied); Potter v. Anthony Crane Rental of Texas, Inc., 896 S.W.2d 845, 849 (Tex.App. — Beaumont 1995, writ denied). The appellate court cannot retry the case or otherwise substitute its judgment or opinion for that of the trier of fact. Mohnke, 915 S.W.2d at 589; see Parallax Corp., 910 S.W.2d at 89-90; Potter, 896 S.W.2d at 849. Only when the judgment is clearly wrong and unjust, after giving due deference to the jury’s determinations of the facts, may the reviewing court reverse the judgment. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Potter, 896 S.W.2d at 849.

In their brief, the Lances contend the following physical injuries were caused directly by David’s automobile collision with McDonald: cuts on his left hand, a bruised shoulder, a bruised and swollen face, general restricted movement and sleeplessness. We have reviewed the record thoroughly, and it fails to establish that the jury’s finding of no damages was against the great weight and preponderance of the evidence.

We will first address whether the facts in the record support the jury’s implied finding of no damages for the injuries to David’s hand, shoulder and face.

The Lances complain that the evidence was uncontroverted that David suffered cuts to his left hand, a bruised shoulder and a bruised and swollen face as a result of the accident. The only evidence offered by the Lances in support of their contention consisted of their testimony on David’s physical condition immediately after the accident.

David testified that as a result of the accident, there was glass embedded in his left hand and that he hit his head against the air bag that had activated upon his car’s impact with McDonald’s pick-up truck. He testified that the seat in which he was sitting was twisted as a result of the collision. He stated that Trooper Applewhite transported him to the emergency room at a local Waxahachie hospital where medical professionals removed shards of glass from his left hand. According to David, the medical professionals also gave him some ice packs and a sling for his shoulder.

Shelley testified that when she saw David at the hospital she noticed bandages on his hand but that she could see where his hand had been cut. She also noticed that he had been given an ice pack and that his face appeared to be swollen. USAA did not offer any evidence to directly controvert the testimony of David and Shelley on the alleged injuries to his hand, shoulder and face.

While David’s and Shelley’s testimony on these injuries was not controverted, the jury was not required to accept their version of the events. The jury is free to believe or disbelieve any witness, regardless of whether the witness’s testimony is later controverted. Novosad v. Mid-Century Ins. Co., 881 S.W.2d 546, 551 (Tex.App. — San Antonio 1994, no writ); McGuffin v. Terrell, 732 S.W.2d 425, 428 (Tex.App. — Fort Worth 1987, no writ); McInnes v. Yamaha Motor Corp., U.S.A, 659 S.W.2d 704, 708 (Tex.App. — Corpus Christi 1983), aff'd, 673 S.W.2d 185 (Tex.1984), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985). The jury quite plausibly could have declined to accept David’s and Shelley’s testimony because of the evidence they failed to present. Dillard’s Dept. Stores, Inc. v. Strom, 869 S.W.2d 654, 657 (Tex.App. — El Paso 1994, writ dism’d by agr.) (failure to produce important evidence within party’s control raises presumption that the evidence, if produced, would be unfavorable). The Lances did not submit any medical records from the Waxahachie hospital to indicate that the treating medical professionals discovered any injuries to David’s shoulder or face, or that they removed any glass from his left hand. Neither did the Lances offer any testimony from these medical professionals.

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Lance v. USAA Insurance Co.
934 S.W.2d 427 (Court of Appeals of Texas, 1996)

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934 S.W.2d 427, 1996 WL 667882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lance-v-usaa-insurance-co-texapp-1996.