Atchison, Topeka & Santa Fe Railway Co. v. McCartney , 1977 Tex. App. LEXIS 3221 ( 1977 )

KEITH, Justice,

dissenting.¹

Contrary to what is said in the majority opinion, the award in this case is so excessive as to shock the conscience of this member of the court.

In his second question asked upon the trial of this cause, counsel for the plaintiff established the fact that plaintiff bore the nickname of “Sluggo”. Counsel then succeeded in selling five of Sluggo’s toes upon one foot to the Santa Fe for NINETY THOUSAND (tax proof) DOLLARS each. Thus, Sluggo and counsel left the courthouse with a judgment against a solvent defendant which ordered paid to him — in a lump sum, without discount, and tax free-his gross income for more than twenty-five years in the future.

We are here dealing with a young man in the prime of life with no disabling injuries other than those confined to his right foot. Yet, the majority finds that this award is not excessive and cites three cases. An examination of the cited cases reveals that six persons received severe and crippling injuries described in detail in the several opinions. Yet, these six persons collectively were awarded less than sixty percent of the sum awarded to our plaintiff.²

I recognize the right of a jury to assess damages; still, I would give recognition to the constitutional duty imposed upon trial judges and those of the intermediate courts of this state, to review such judgments to determine excessiveness. I decline to shirk this second duty. We have a young man who has lost his toes upon one foot. With a monetary award such as he now has almost in hand, there is little incentive for him to attempt other gainful employment. Indeed, with judicious management of this large sum of money, he can earn tax free interest far in excess of his gross earnings on the railroad.

Since I would require a substantial remit-titur as a condition of affirmance and cannot convince my colleagues of the justness of my position, I dissent.

1 . One of the more unpleasant duties of an intermediate appellate judge in Texas is that of passing upon claims that damage awards are excessive. So long as I continue in this office, I will strive to discharge that duty. I have concurred in requiring remittiturs. Collins v. Gladden, 466 S.W.2d 629, 637 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.). I have filed a “Non-Concurring Opinion”, expressing some degree of frustration as to the state of the law on the subject. Cezeaux v. Libby, 539 S.W.2d 187, 190 (Tex.Civ.App.—Beaumont 1976, no writ). While I have now come about in a full circle, I have not retreated from the position I staked out in Collins, supra. I now dissent.

2 . Mrs. Stricklen was awarded $66,565.20 (498 S.W.2d at 358); Milam’s award was $83,750 (480 S.W.2d at 267). Four plaintiffs in the Sunset Brick Case received the sums set opposite their respective names: Wessels — $14,250; Baggett — $26,250; Miles — $73,500; and Vincent — $2,625 (430 S.W.2d at 393, 394). The total amount awarded these six plaintiffs was $266,940.20.

On March 5, 1977, Sluggo’s judgment will have a value of FOUR HUNDRED NINETY THOUSAND, FIVE HUNDRED (tax proof) DOLLARS, which will increase before our judgment is final.