Texas Construction Service Co. of Austin, Inc. v. Allen

635 S.W.2d 810, 1982 Tex. App. LEXIS 4385
CourtCourt of Appeals of Texas
DecidedMay 20, 1982
Docket2160cv
StatusPublished
Cited by37 cases

This text of 635 S.W.2d 810 (Texas Construction Service Co. of Austin, Inc. v. Allen) 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
Texas Construction Service Co. of Austin, Inc. v. Allen, 635 S.W.2d 810, 1982 Tex. App. LEXIS 4385 (Tex. Ct. App. 1982).

Opinion

OPINION

NYE, Chief Justice.

This is a personal injury ease. Defendant-appellant, Texas Construction Company *812 of Austin, Ine. (Texas Construction), is appealing from a jury verdict that awarded damages to the plaintiff (appellee), John Allen. Mr. Allen brought suit to recover damages for injuries sustained to his eyes while working at the South Texas Nuclear Project in March, 1978. The accident occurred when Allen was working behind Texas Construction’s truck and it began spraying lime. The lime came in contact with Allen’s eyes, severely injuring them. Trial was to a jury which found that Texas Construction was negligent and that such negligence proximately caused Allen’s injuries. The jury acquitted Allen of any contributory negligence and awarded Allen damages in the total amount of $500,000.

Texas Construction, on appeal, brings forth several points of error complaining of the excessiveness of the damages awarded; the elements of damage submitted; the admissibility of certain medical testimony; improper jury argument and cumulative error.

In its first and second points of error, Texas Construction complains that the award was excessive and that the trial court should have granted a remittitur. In reviewing the remittitur point, we follow the general rule that we are to consider only the evidence that is favorable to the award. Armellini Express Lines of Florida, Inc. v. Ansley, 605 S.W.2d 297 (Tex.Civ.App. —Corpus Christi 1980, writ ref’d n.r.e.), and cases cited therein.

The general rule is that, on appeal, the finding of a jury will not be disturbed on the ground of excessiveness if there is any probative evidence to sustain the award. The appellate court should not substitute its judgment for that of the jury unless the record indicates that the jury was influenced by passion, prejudice or improper motive. If, after such a review of the evidence, the court finds that the award is so excessive that it shocks the conscience of the appellate court, a remittitur is proper. Armellini Express Lines of Florida v. Ansley, supra; International Harvester Company v. Zavala, 623 S.W.2d 699 (Tex. Civ.App. — Houston [1st Dist.] 1981, writ ref’d n.r.e.). Even if the award seems to be high, both the jury and the appellate court are entitled to consider the effects of inflation and the decreasing value of the dollar. Southern Pac. Transp. Co. v. Peralez, 546 S.W.2d 88, 98 (Tex.Civ.App. — Corpus Christi 1976, writ ref’d n.r.e.); Caterpillar Tractor Co. v. Gonzales, 599 S.W.2d 633 (Tex.Civ. App. — El Paso 1980, writ ref’d n.r.e.). Texas Construction argues that the amount of damages in this ease, $500,000, is “usually the kind of damages associated with herniated discs, catastrophic multiple injuries and extended custodial care.” Each case must stand on its own. It is proper to compare the awards in other cases from other courts to determine if, after meeting all of the other tests of excessiveness, it shocks the conscience of the court. The mere fact that an award is large is no indication of passion, prejudice or improper motive. International Harvester Company v. Zavala, supra.

In reviewing the present record in such light, the evidence shows that Mr. Allen’s vision in his right eye was nearly gone and that ever since the date of the accident, his eye continued to get worse. It was extremely painful. The evidence showed that Allen could hardly see out of his right eye. His left eye was also giving him trouble since the accident happened. He testified that there were two spots from which he could see nothing. Allen had triple vision in this left eye at night, and it too was gradually getting worse. More than one doctor had told Allen that they did not see any chance for his left eye to improve. Allen testified that his eye condition has caused him great concern because he can no longer enjoy hunting, fishing and other sports. He could not hold down a job like he was able to before the accident. He also had trouble using steps. He ran into things because his depth perception with only one eye was bad. He testified that he had difficulty reading for long periods of time and that a visible white milky cloudiness developed in his right eye after the accident.

*813 Three physicians testified to the fact that Mr. Allen’s impaired vision was a result of the lime accident. Dr. Smith stated that the exposure to the lime merely aggravated a pre-existing herpes viral infection. Dr. Baum, an ophthalmologist, testified that an alkaline such as lime generally causes vision impairment early on, but that it is possible that it may also cause a later se-quela which could result in vision changes up to a year from the time of the accident. Dr. Baum also testified that Mr. Allen’s impaired vision would hinder him in doing the type of construction work he had been doing. In 1978, at the time of the accident, Allen was earning $3200 per month and was responsible for supervision of 300 men. He was furnished a vehicle in addition to his salary. We hold that the jury award is not excessive.

Texas Construction also contends that the jury finding that Mr. Allen suffered damages in the amount of $500,000 is against the great weight and preponderance of the evidence. In reviewing this point, we must consider all of the evidence in the record. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); and Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 359 (1960). After carefully reviewing all of the evidence and the entire record as a whole, we find that there is ample evidence to support the award of $500,000, and that it is not against the great weight and preponderance of the evidence.

Texas Construction contends in points of error three, four and five that the trial court erred in submitting the element of past and future cosmetic disfigurement in Special Issue 3 because there was no evidence with regard to these elements, or in the alternative, that such evidence was against the great weight and preponderance of the evidence. On reviewing the record, we find that Texas Construction did not object in any manner to the submission of Special Issue 3. By failing to object to the special issue, Texas Construction waived any defect in the same and may not complain of the same on appeal. Rule 274, T.R.C.P. (1981). In addition, we find there was evidence of cosmetic disfigurement and that it was not against the great weight and preponderance of the evidence. Accordingly, these points of error are overruled.

Texas Construction, in its sixth and seventh points of error, contends that the trial court erred in admitting the testimony of Dr. Baum on Dr. Black’s medical report. It argues that the testimony of Dr. Baum with regard to this report was inadmissible because it was not in evidence and was, in fact, inadmissible as a matter of law.

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Bluebook (online)
635 S.W.2d 810, 1982 Tex. App. LEXIS 4385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-construction-service-co-of-austin-inc-v-allen-texapp-1982.