Mendoza, Adalia v. Swanson, Russell Warren ( 2000 )

NUMBER 13-99-563-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ADALIA MENDOZA

, Appellant,

v.

RUSSELL WARREN SWANSON

, Appellee.

___________________________________________________________________

On appeal from the 357th District Court of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Yanez, and Kennedy⁽¹⁾ Opinion by Justice Kennedy

Appellant, Adalia Mendoza, was a passenger in a car which was struck from behind by another vehicle while her car was stopped at a railroad crossing. She and her husband, Ricardo Mendoza, who was driving, brought suit against the driver of the vehicle which struck their car, alleging negligence in several respects. They sought recovery for her past and future physical and mental pain, her past and future medical expenses, impairment of her ability to earn a livelihood, and impairment of their ability to administer to their needs and the needs of their family.

In answer to special issues, the jury found the defendant negligent, found, with regard to Adalia Mendoza, the sum of $4,533 for medical expenses in the past and nothing for past physical pain and mental anguish, future physical pain and mental anguish, physical impairment in the past, future physical impairment, and future medical expenses. The jury awarded zero damages to the husband, Ricardo Mendoza, for physical pain and mental anguish in the past, future physical pain and mental anguish, past medical expenses, and future medical expenses.⁽²⁾

The court entered judgment in the sum of $4533 to Adalia Mendoza and nothing to Ricardo Mendoza. Plaintiff, Adalia Mendoza, was also awarded $132 in prejudgment interest.

Appellant's brief brings two points of error, the first of which charges that the jury's verdict as to damages was against the great weight and preponderance of the evidence, and the second of which charges abuse of discretion by the trial court in failing to grant appellant's motion for new trial. Because the basis for both points are the same, and they are argued jointly in appellant's brief, we consider and decide them as one issue.

When reviewing a jury verdict to determine the factual sufficiency of the evidence, a court of appeals must consider and weight all the evidence, and should set aside the verdict 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). We cannot substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex.App. ­ Houston [1^st Dist.] 1993, writ denied).

Appellant, in her brief, summarized the evidence of her injuries. She states that she informed the ambulance attendant that she was experiencing low back pain, head pains and "bloody discharge." The summary continues: "The emergency room doctor's diagnosis was that she suffered an acute lumbar strain secondary to motor vehicle accident." She then consulted a chiropractor who said that she had stiffness in her neck and spasms in her back. She also said an MRI exam showed posterior central disc protrusion. In addition, appellant's brief summarizes appellant's own testimony about her pain and physical limitations.

Appellant testified that, prior to the accident, she had no low back pain. However, she was shown her medical records which recited that three days before the accident she saw her private physician and complained of back pain and cramping. Appellant testified that she was pregnant and lost her baby following the accident, however, a sonogram done two days after the accident showed an "empty gestational sac."

The jury also heard evidence that appellant was not working before the accident and that, following the accident, she worked at Wal-Mart and at Texas Visiting Nurse Service and that she left both places of employment for reasons not related to her injuries from the accident. Appellant testified that she rises at 6:00 a.m. and, after breakfast, she "goes through the kids' rooms and does their beds." She cooks, does laundry twice a week, and irons once a week, although she does these duties "little by little."

Appellant cites Lowery v. Berry, 269 S.W.2d 795, 796-97 (Tex. 1954), which the brief purports to quote as saying: "When there are objective symptoms or signs of injury that were unquestionably caused by a collision, a jury verdict of no damages . . . is against the great weight and preponderance of the evidence." We are unable to find this exact language in Lowery. However, the supreme court in Lowery did say: "The answer of the jury that she suffered no damages is not only unsupported by any evidence, but is directly contrary to all the evidence. The undisputed facts disclosed that she did suffer damages . . ." The court in Lowery noted that the injured child's treating physician testified that the child "received multiple fractures of the skull and the skin and tissues of the left side of her head were so severely torn that that part of her skull was laid bare." Id. at 796.

This court in Crowe v. Gulf Packing Company, 716 S.W.2d 623 (Tex. App. ­ Corpus Christi 1986, no writ) reversed the trial court, saying:

We find it inconceivable that the jury could find injury and compensable medical care, disfigurement and incapacity and yet find no physical pain and mental anguish. The amount of damages is largely within the jury's discretion. However, they must award something for every element of damage resulting from an injury.

However, in Crowe the jury awarded damages for loss of earnings in the past, loss of earning capacity, disfigurement, physical impairment both past and future, and past and future medical expenses. One doctor testified (in Crowe) that plaintiff was treated with pain killers, anti-spasmodic drugs, and anti-inflammatory drugs. Another doctor testified that plaintiff had had several surgeries and, on the occasion of the second surgery, he located a formerly undiscovered tear in the rotator cuff.

In the case before us, the evidence of appellant's injuries and pain following the accident were entirely subjective. There were several conflicts between her testimony and the medical records, including her claim that she was pregnant and lost her baby three days after the accident whereas the medical records showed she was not pregnant.

Having weighed all the evidence, we do not find the verdict to be so contrary to the weight of the evidence as to be clearly wrong and unjust. The trial court did not abuse its discretion in denying appellant's motion for new trial. We AFFIRM the judgment of the trial court.

Noah Kennedy

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 29th day of June, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. This appeal is brought solely by Adalia Mendoza.