Leonhart v. Gilbreath

347 S.W.2d 369, 1961 Tex. App. LEXIS 2394
CourtCourt of Appeals of Texas
DecidedMay 25, 1961
DocketNo. 13709
StatusPublished
Cited by1 cases

This text of 347 S.W.2d 369 (Leonhart v. Gilbreath) 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
Leonhart v. Gilbreath, 347 S.W.2d 369, 1961 Tex. App. LEXIS 2394 (Tex. Ct. App. 1961).

Opinion

WERLEIN, Justice.

Appellees, Mrs. Margaret L. Gilbreath and husband, sued appellants to recover damages for personal injuries sustained by Mrs. Gilbreath on May 17, 1958 as a result of a collision between the Gilbreath car and a truck-trailer driven by appellant, Wilbur Lee Leonhart, and owned by appellant, Archie Lacy. The case was tried before the court without a jury. From the court’s judgment awarding appellees $24,-500, appellants have perfected their appeal.

Appellants complain that the judgment of the court is grossly excessive and that the trial court erred in assuming appellants [370]*370were protected by liability insurance. At the request of appellants, the trial court set forth with particularity the amount of damages found for each of the elements of damage taken into account. Included in the total amount is $2,000 reasonable medical expenses, the parties having stipulated that medical and hospital bills aggregated such amount to date of trial. $10,000 was for physical pain and mental anguish of Mrs. Gilbreath from the date of injury to trial, and $7,500 for such physical pain and mental anguish as she would in reasonable probability suffer in the future. $3,000 was for her disability to perform her usual and customary duties, chores and services as a housewife and mother from date of injury to trial, and $2,000 for such disability in the future.

In considering appellants’ assertion that the amount of damages found by the court is excessive, we think it proper to summarize briefly the evidence pertaining to Mrs. Gilbreath’s physical condition and complaints, both before and after the accident in question.

The evidence shows that at the time the collision occurred, Mrs. Gilbreath!s head struck the windshield of the car with sufficient force to break it; that she sustained a three inch cut on the top of her head, and was thrown or caused to fall out of the automobile into the ditch near the road, where she lay unable to get up. She suffered a badly bruised left knee, severely bruised right side, arm and right breast, contusions and lacerations of the scalp, bruises and abrasions on her face, a contusion of the left clavicle, left upper arm, and a lumbosacral strain. She was taken to Heights Hospital in an ambulance.

There is evidence that Mrs. Gilbreath, who was 36 years of age at the time of the collision, had had some back trouble, headaches and nervous tension at times prior to the accident. Her family doctor testified that she had some back trouble and was down in the back in 1954, but recovered from that difficulty in a short time. She also had several episodes with her back since her last child was born. There is evidence that she had a narrowing of the fifth lumbar interspace and a degenerative disk, but there is no evidence of any prior injury to her back. Dr. Milligan, an orthopedic surgeon, testified that one could have a degenerative disk without any disability. His diagnosis was that Mrs. Gilbreath had a lumbosacral strain superimposed upon an old degenerative disk, and that was just like saying that a back sprain is superimposed upon an old arthritis.

Appellees’ physician, Dr. Shoemaker, testified that Mrs. Gilbreath was in pretty fair health prior to the accident and that she did not see him any more than the average patient would, and then only for minor women’s complaints and that sort of thing. The evidence shows that prior to the collision Mrs. Gilbreath not only performed all of her household duties, but that she also mowed her lawn, played on the church volley ball team during the 1957-1958 season, and enjoyed playing with her children, working in the yard and flower beds, and that there was nothing that prevented her from engaging in any sort of physical activity.

The record is replete with evidence of the severe physical pain and mental anguish which Mrs. Gilbreath has suffered ever since the accident. The pain in her back became worse and so severe and persistent that her family doctor referred her to Dr. Milligan, who found marked limitation of motion in all directions because of pain in the low back and muscle spasm. She was sent to St. Joseph’s Hospital for a myelogram. After consultation with Dr. Skogland, Dr. Milligan performed exploratory and decompression operations and then a spinal fusion operation, using a bone cut from the back part of her pelvic bone in fusing the fifth lumbar vertebra to the first sacral vertebra. The Operations were extremely painful. Mrs. Gilbreath has suffered more or less continuously ever since from the place in her pelvic bone from [371]*371which the bone for the graft was removed, and also from muscle spasms in her back and cramps in her legs.

Following the injuries she suffered severe headaches which gradually grew worse and became so severe that they caused her to become sick and vomit. The severe headaches and vomiting have sometimes occurred as often as twice a week and have been recurrent since the accident down to the date of trial. Mrs. Gilbreath testified that her severe headaches and extreme pain in her low back and leg cramping have remained about the same. She never had such headaches before the accident. She is never free from pain and is still under the care and treatment of her family doctor, who testified that the accident is apparently affecting her general health and that she will continue to have considerable difficulty for a good while; that prior to the accident she had not come to his office for headaches but since the accident she has been at his office numerous times; that she has sometimes vomited for 12 to 14 hours before coming to the office and that the injuries she sustained were a causation factor. There is testimony that since her injuries she has worn a brace or surgical corset and has not been able to perform her usual activities and household duties or even pick up things or move anything heavy or sweep with a broom, or do yard work or participate in activities and sports with her children or play on the church volley ball team; that Mr. Gil-breath has had to do most of the housekeeping, and that for fifteen weeks his aunt came to help out.

There is nothing in the record to show bias or prejudice or other improper motive on the part of the judge who tried the case that would warrant disturbing his judgment. The evidence as a whole shows that appellee, Mrs. Gilbreath, sustained severe and painful injuries, which will trouble her in the future indefinitely, and that she has been and is incapacitated from performing most of her household duties and that she has suffered severe pain ever since the accident almost continuously and will continue to suffer for an indefinite period in the future.

We do not consider the amount awarded by the court excessive or in any way disproportionate to the injuries sustained by said appellee. It will be noted that the major portion of the amount decreed by the court is for physical pain and mental anguish which Mrs. Gilbreath has suffered and will continue to suffer in the future indefinitely.

In Port Terminal Railroad Association v. Noland, Tex.Civ.App., 288 S.W.2d 276, 282, ref., n. r. e., this Court stated:

“Any undertaking on the part of a reviewing court to evaluate another individual’s pain and suffering in dollars and cents is manifestly a most difficult task. There is almost no yardstick which may be employed which will remove the decision from the realm of pure subj ective thinking.

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Bluebook (online)
347 S.W.2d 369, 1961 Tex. App. LEXIS 2394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonhart-v-gilbreath-texapp-1961.