Texarkana Bus Company v. Carter

301 S.W.2d 300

• Court: Court of Appeals of Texas
• Decided: April 11, 1957
• Docket: 6876
• Status: Published

Opinions

CHADICK, Chief Justice.

This Court on June 14, 1956, reversed and remanded this case. 292 S.W.2d 869. In a per curiam opinion, on application for writ of error, the Supreme Court remanded the case to this Court for compliance with the mandatory provisions of Rule 440, Texas Rules of Civil Procedure.

In a world so full of pain and suffering it is strange that no one has perfected a gauge that will accurately measure its value. Courts have wisely left this to the sound discretion of fair and unbiased juries, which in the final analysis is the only protection of any property right. This court has no right to substitute its judgment for that of the jury hearing the case, and may do so by requiring a re-mittitur, only where from the evidence, it is apparent that passion, prejudice, corruption or a disregard of evidence entered into the verdict. 13 T.J., Sec. 151, p. 271.

As pointed out in the opinion originally handed down by this Court there is some indication that prejudice and disregard of the testimony entered into the verdict. II-, lustrative is the jurors’ testimony that they assessed damages not for loss, permanent injury, doctors’ hills, pain or suffering hut because the bus stopped in front of the appellee; and the amount of the judgment in the almost complete absence of objective symptoms of injury.

The appellee’s motorcycle struck the rear end of the bus with sufficient force to knock a bumper off on one side, throw the appellee over the windbreak of the motorcycle and against the back corner of the bus. His back struck the bus, he fell to the street and was unconscious briefly. Doctors treated him and prescribed rest and heat applications to his back in the lumbar region. The treating doctor placed him in a brace which he had worn four or five days per week until the time of the trial. Appellee testified that the brace eased his pain and strengthened his back. By his own reckoning he lost about 30 days’ time. He stated that he had suffered pain in his back since the occurrence. The bruises and abrasions seem not to have been of any great significance or caused any continuing pain or disability.

Appellee’s doctor testified that in his opinion the injury aggravated a pre-exist-ing back injury and that appellee would continue to suffer from it the remainder of his life. This doctor who as the city’s doctor had had occasion to examine ap-pellee in 1950, when appellee was employed as a police officer, also testified that there was some limitation of motion in appellee’s back which was greater after the accident than it was before.

In 13 Tex.Jur., Secs. 160 and 171 at pp. 287 and 311, the text-writers, though admitting that a classification is well nigh impossible, undertook to classify injuries to the spine and made note of the action of the various courts over the years in determining whether verdicts are excessive or not. Perusals of the cases cited are helpful, and though they do not lend to a fixed rule, some guide is furnished leading to the conclusions stated hereafter.

Recognizing, as this Court does, that the injuries to different persons in separate occurrences are never going to be the same, some authority for the action here taken may be found in Texas-Mexican R. Co. v. Creekmore, Tex.Civ.App. 1919, 204 S.W. 682, error dism. In that case a railway postal clerk suffered muscle injuries in the lumbar region of his back. He suffered severe, acute pain initially after the accident, and a continuing, dull heavy pain until the time of the trial. He was under treatment by medical doctors, and a part of the treatment was to brace his back by plasters and the use of a walking cane when he moved about. He lost 45 days’ work.

In both cases the injury was to muscles in the lumbar region of the back, and because of weakness there, treatment was to brace the back. In this case, Carter had been under such treatment from the time of the accident on November 14, 1953, until the time of the trial on June 13, 1955. In the Creekmore case the time between the injury and the trial is not shown, but the medical testimony in it, as it is to Carter in this case, was that pain and a weakened condition would be present the rest of Creekmore’s life.

The charge in the Creekmore case permitted a recovery for medical expense of $150 and also for future medical treatment, as well as for physical pain past and future, while in this case, recovery was limited to past and future physical pain. However, on the basis of the facts set out in the Creekmore opinion, it appears that the recovery was based largely upon the factor of pain and suffering.

It was held in the Creekmore case that a recovery of $6,000 was not excessive. Giving some consideration to the purchasing power of money at this time, 13 Tex. Jur., Sec. 159, p. 286, a recovery for the appellee Carter in this case of $5,000 would not be excessive. The judgment of the trial court awarding $10,000 datnages is excessive $5,000.

If appellee files a remittitur in the sum of $5,000 within 20 days from the date of this opinion, the judgment of the trial court will be affirmed; in the absence of such remittitur on or before such date, the casé will be reversed and remanded for new trial.

FANNING, J., concurs. DAVIS,' J., dissents.