Southwestern Bell Telephone Company v. Danny Alemania

• Court: Court of Appeals of Texas
• Decided: June 1, 2000
• Docket: 13-99-00021-CV
• Status: Published

Opinion

NUMBER 13-99-021-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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SOUTHWESTERN BELL TELEPHONE COMPANY

, Appellant,

v.

DANNY ALEMANIA

, JR., Appellee.

_________________________________________________________________

On appeal from the County Court at Law No. 4 of Nueces County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Yañez Opinion by Chief Justice Seerden

Southwestern Bell Telephone Company ("SWBT"), appellant, complains of the trial court's award of damages for mental anguish in a suit for damages arising from an automobile collision. The issue presented for review is whether the jury's award of mental anguish damages was supported by legally and/or factually sufficient evidence. We hold that it was and affirm the trial court's judgment.

Appellant does not challenge the jury's findings on liability, the award for $6,000 for past medical expenses, $3,000 for past physical pain or $500 for lost wages. Its only contention is that the $10,000 jury finding for past mental anguish was not supported by legally or factually sufficient evidence.

In a legal sufficiency review, we may only consider the evidence and inferences tending to support the jury's findings. This evidence must be viewed in the light most favorable to the findings and we must disregard any evidence and inferences to the contrary. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988). So long as there is more than a scintilla of evidence supporting the finding, the challenge will be overruled. Id. By contrast, in a factual sufficiency review, we examine all of the evidence, regardless of its effect on the challenged finding. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986). We may reverse the challenged finding only if it is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

SWBT argues that the record shows no direct or circumstantial evidence to support an award for mental anguish. To support its argument, SWBT points to the fact that Alemania was asked only one question regarding his "mental anguish." SWBT insists that all other testimony and evidence relates generally either to the nature of the accident or the degree of Alemania's physical injuries. Thus, SWBT argues, there is no evidence of mental anguish damages.

SWBT further argues that if the foregoing supported some damages, such a conclusory statement regarding the nature of the damages does not support an award of $10,000. SWBT points out that appellant's counsel only asked for $5000 in mental anguish during closing argument.

The Texas Supreme Court has "authorized recovery of mental anguish damages in virtually all personal injury actions." Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex. 1995). Where "serious bodily injury is inflicted . . . some degree of physical and mental suffering is the necessary result." City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997) (emphasis supplied) (citing Brown v. Sullivan, 71 Tex. 470, 10 S.W. 288, 290 (1988); T. & P. Ry. v. Curry, 64 Tex. 85, 87-88 (1885)). In some cases, disturbing or shocking injuries are sufficient per se to support an inference that a physical injury was accompanied by mental anguish. Parkway Co. v. Woodruff, 901 S.W.2d 434, 445 (Tex. 1995). While it is unquestionably true that in the foregoing cases, the supreme court has enhanced the burden to prove mental anguish damages in most instances, a corollary of those decisions is that mental anguish remains concomitant with serious bodily injury. See Temple-Inland Forest Prod. Corp. v. Carter, 993 S.W.2d 88, 93 n.26 (Tex. 1999) ("In almost all instances involving personal injury, the law allows for the recovery of accompanying mental anguish damages, even if the mental anguish is not itself physically manifested.") (citing Likes, 962 S.W.2d at 495; Krishnan, 916 S.W.2d at 481).

Here, the record shows that Alemania testified regarding the nature of his physical injuries. He described pain radiating around his back and ribs to the front of his chest. Alemania testified that he originally used ice and heat to treat and control his pain. He also said that he took Tylenol. These treatments did not resolve the pain. He stated that his injuries caused him to miss approximately three weeks of work and required chiropractic treatment for three months, which included chiropractic manipulations, heat, traction, electric stimulation, and cyrotherapy. He also testified that his injuries caused his referral to an osteopath who prescribed pain medication. Alemania complained of headaches, mid-back and rib pain, low back pain, and difficulty bending, reaching, and twisting. Alemania further averred that he suffered insomnia resulting from his physical pain. As noted above, in the course of treating his injuries, Alemania incurred roughly $6000 in medical expenses.

The jury found that Alemania suffered some degree of mental anguish as a result of his injuries and suffering. SWBT suggests that Alemania's evidence proves he suffered physical pain and that the segregated damage award accounts for the extent of that pain, but that the same evidence does not also show that Alemania suffered mental anguish. However, while "physical injuries to the body and mental injuries may be distinct and separate harms," in some instances, it remains true that it is difficult "if not impossible, to distinguish between simply mental and strictly physical ailments, because they each may manifest themselves by symptoms relating to the other." Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 826 (Tex. 1997).⁽¹⁾ Here, the evidence, without dispute, shows that Alemania suffered physical injuries and some psychological trauma. In this case, the jury found, as it was entitled to, that Alemania suffered the requisite degree of mental pain and distress as a result of his injuries. The evidence is legally sufficient to support this finding.

Moreover, the evidence is factually sufficient to support the same finding. Alemania adduced the foregoing evidence at trial. The only arguably countervailing evidence introduced was that Alemania suffered only "soft tissue injuries" which were treated conservatively and resolved in a relatively short period. Nevertheless, SWBT's evidence does not suggest that Alemania did not actually suffer physical injury. Moreover, SWBT did not counter Alemania's evidence that he suffered disruption of his daily routine, manifested by his insomnia and his absence from work for approximately three weeks. It is apparent from the verdict that the jury believed this disruption to be substantial, as was their prerogative. Accordingly, we find that the evidence was factually sufficient to support the jury's findings.

With regard to the amount of damages awarded for mental anguish, the supreme court has acknowledged that the jury is vested with discretion. See Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 613 (Tex. 1996). The amount awarded must "fairly and reasonably compensate" the victim for the loss. Id. However, we are cognizant of the fact that once compensable mental anguish has been established, the jury's valuation of the award is not subject to precise mathematical calculation. City of Alamo v. Casas, 960 S.W.2d 240, 256 (Tex. App.--Corpus Christi 1997, pet. denied); Dico Tire, Inc. v. Cisneros, 953 S.W.2d 776, 792 (Tex. App.--Corpus Christi 1997, pet. denied). As a general rule, unless the award is "so large as to indicate that it was influenced by passion, prejudice, or other improper motive, the jury verdict will not be set aside." Dico Tire, 953 S.W.2d at 792. Here, the amount of the jury's award is closely related to the other awards. There is no evidence in the record to indicate that the jury's conclusion was improperly motivated. We hold that the jury's mental anguish award is adequately supported by the evidence in the record.

SWBT's issue is overruled.

The judgment of the trial court is AFFIRMED.

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ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 1st day of June, 2000.

1. During oral argument, SWBT cited a 1995 decision in which this Court held that mental anguish and pain and suffering are distinguishable. See Sharm, Inc. v. Martinez, 900 S.W.2d 777, 784 (Tex. App.--Corpus Christi 1995) (citing Ford Motor Co. v. Durrill, 714 S.W.2d 329 (Tex. App.--Corpus Christi 1986), judgment vacated by agreement, 754 S.W.2d 646 (Tex. 1988)). The judgment in that case, as in the case it relied upon in reaching that conclusion, has subsequently been vacated.