*1 Thus, point of Yates’ third we overrule
error. point fourth
Finally, in Yates’
error, the trial court she asserts restricting the
abused its discretion re of a witness
cross-examination State’s possible
garding other uses of devices into the State. offered evidence
However, Yates did not make an offer predicated error not be
proof, and ruling excludes unless
upon a evidence affected, right party is of the
a substantial
and the substance evidence by offer or to the trial court
made known apparent from the context within TEX.R. questions were asked.
which Brown v. 103(a)(2); See
CRIM.EVID.
State, (Tex.App— 340-41 pet.); TEX.R.APP.P.
Beaumont
52(b). us, on the record we Based before
conclude that the substance of the evidence from apparent
was not the context within Therefore, questions were asked. point overrule Yates’ fourth of error judgment. the trial court’s
and affirm & ARKANSAS RAILWAY
LOUISIANA
COMPANY, Appellant, CAPPS, Appellee.
Randall Dean
No. 9632. Texas, Appeals
Court
Texarkana. 18, 1989.
Jan.
Rehearing Denied Feb.
March *2 Hatchell, Jeffus, Ramey, Flock,
Mike A. Crawford, Harper, Tyler, William C. Good- Dodson, ing, Gooding Texarkana, & for appellant. Jr., Jones, Marshall,
Franklin Harold W. Nix, Daingerfield, appellee. BLEIL, Justice.
Louisiana Railway Company & Arkansas appeals judgment from a in favor of Capps, Randall who sued under the Liability Federal Employers Act for dam- ages resulting injuries from he sustained while working Railway. for the The Rail- way complains erred failing on instruct the how to re- damages duce to their value and in allowing argument. improper jury It fur- ther the trial contends that court erred in refusing grant a remittitur. We con- clude that the trial court committed no trial, respect conducting error with evidence, but that based on the its refusal suggest a remittitur was error. We Capps, therefore through indicate to his attorney, that he file a remittitur for damages the excess awarded for future physical pain anguish. and mental If the suggested filed, remittitur we shall re- affirm, judgment form and otherwise will be reversed. worked for as a required get
brakeman. him His work moving during on and off of railroad cars switching operations yards railroad be- Shreveport tween Dallas and order to couple uncouple them from trains. He 22, 1985, injured January on as he stepped moving off a car that across a siding at seven miles an about five to hour. asphalt surface around the track was normally kept clear obstructions. On night Capps stepped injury, of his onto balance, large rock, twisted his lost fell, severely injuring right ankle and knee. injury,
As a result of
he underwent
arthroscopic
first
then reconstructive
anguish
ages
and mental
surgery,
by physical
therapy,
physical
followed
adequately supported.
continued
December 1985. The
until
in the future are not
therapy
completely
physical
did not
rehabil-
the trial
Railway maintains that
time
Capps’ knee and as of the
itate
failing
properly
instruct
court erred
dislocate itself
trial his knee continued to
converting
total
the methods
use.
him
under normal
His doctor told
figure. Al
damages
value
give
railroading
up
he had to
as a
though
who testified on be
the economist
*3
knee
career and that his unstable
was
concerning
Capps
damages
half of
testified
something
he
to live
would have
with.
damage
at
the
amounts he arrived
thirty-
of the
was
At the time
trial
value,
Railway
present
the
were reduced
old,
high
had
years
obtained a
school
two
requested
give
instruc
the court
this
general equivalency diploma, and had never
tion:
any job
physically
worked at
that was not
determining
In
the
to be
amount
demanding.
capacity in
earning
for loss of
awarded
Capps testified that he suffers constant
future, you are
to award
instructed
pain
injury,
from
but that he
uses
present
of the
value
loss. To deter-
pain
he
aspirin as
medication because
fears
value,
present
you
mine
find the
are to
drugs.
stronger
engaged
He had
in num-
a
loss
discount
amount of the
and then
relatively
ber of
strenuous activities as a
by deducting
an-
that amount
therefrom
part
therapy
of his
in his
effort
nually
equal
highest
amount
to the
to live a
continue
normal life.
at which
sum could
rate
interest
such
applied
forty-five
for work at over
busi-
securely
during
safely
invested
through
Employment
nesses and
the Texas
period
for which
allow
Commission,
job
but
no
had received
offers.
damages.
jobs
sought
Several of the
he
him
foreclosed to
of his physical
because
instruction,
give
The trial
did not
court
disability. He further
testified
but instructed the
that all elements
begun
provide
working
wife had
in order to
damage
loss
reduced
for future
should be
family,
an income for the
and that he was
present
to their
value.
severely depressed because he was unable
The trial court exercises broad discretion
family’s support.
to contribute to his
in the
defini
submission
instructions and
found for
on all issues.
Compa
jury.
tions to the
Mobil Chemical
provide
It
the Railway
found that
failed to
(Tex.1974);
ny Bell,
517 S.W.2d
Wol
place
work,
safe
this failure
(Tex.
649, 651
Wright,
ters v.
injuries,
caused his
and that he
not
n.r.e.);
App.-Texarkana
writ ref’d
negligent.
damages
It
as
found
follows:
Railway
shows
Tex.R.Civ.P.
Physical
men-
in
in the
court’s
abuse
discretion
trial
40,000.00
anguish in
past
tal
$
damages
reducing
on
struction to the
earnings
Lost
in the
present
to their
value.
91,000.00
past
$
Physical pain and men-
trial
failure to
Additionally, the
court’s
anguish in
tal
the fu-
give
requested
is not
instruction
750,000.00
ture
Lost
in the future
Future medical
$
ground
unless
judgment
for reversal
earning capacity
substantially
correct definition or instruc-
$1,280,000.00
requested writing
tion has
and ten-
been
ex-
80,000.00
penses
$
party complaining
judg-
dered
ment.
278. The instruction
Tex.R.Civ.P.
found
Railway
incomplete,
requested by the
unsup-
expenses
on future medical
thus
not be
substan-
could
considered
ported by
judg-
rendered
the record and
is used to
tially correct. Whatever method
portion
ment on that
of the award for
into
take
$85,000.00.
calculate
value should
Railway
not
does
as
rate
sufficiency
account inflation
well as the
the evidence
except
interest.
claim that the dam-
St. Louis Southwestern
the verdict
Dickerson,
Company
factors,
470 U.S.
complainant
must show that
(1985).
S.Ct.
Thus,
proper It will have jury argument crippled, maimed and place, takes La- a com plainant Gentlemen, dies and prove one of following: employees must its in violation of Employer’s the Federal (1) (2) an error that was not invited or Act, Liability gotten by with it.
provoked, (3) preserved that by was proper predicate, trial objec- as an long As argument as the has some eviden- tion, instruct, a motion to or a motion for tiary may basis or reasonably be inferred mistrial, (4) by was not curable from the evidence and is free from inflam instruction, prompt a remarks, withdrawal of the matory proper. it is Fortenberry statement, or reprimand by a (Tex.Civ. Fortenberry, judge.... only There App.-Beaumont 1979, rare instances n.r.e.). writ ref’d improper argu- incurable harm from Railway objected The Capps’ attorney that complainant ment. The has the further indicating was that it had committed an prove (5) burden argument to intentional act and this was nature, degree its negligence and extent constituted case. The court overruled the reversibly long harmful objection. error. How argument This chiefly came in continued, argument reply whether it was re- Railway’s argument to the jury to the peated or abandoned and that, whether there to regard consider Capps’ with to was cumulative error are proper in- testimony, asking “he’s money, for a lot of quiries. All of the got gain evidence must be he’s And, a lot to out of this.” closely (6) examined to determine Capps’ ar- conclude that argument with re gument’s probable effect on a spect material to the Railway’s having something to (7) finding. Importantly, gain proper a reversal must response was Railway’s come from an argument evaluation of the whole something case, begins gain; argument the voir dire and Railway ends closing argument. with the The crippled” “maimed and employ one of its weak, record show that the cause is ees is reasonably based on the evidence strong, or very close. From of showing all these seriously injured was
295 get try them failing pro here before this Railway’s conduct by the telling is not the truth.” Railway say that this man The place a safe work. vide too, is argument, argument We conclude that that it commit characterizes is a on the evidence and charging properly based acts as it ted intentional argument. Railway’s closing reply It Petro criminal conduct. cites American argument, Industries, Inc., Furthermore, it fina, v. PPG Inc. argument at object to this (Tex.App.-Fort Worth the failure to S.W.2d complaint it. by agr.). case about Stan- writ dism’d Reliance trial waived misplaced 584 S.W.2d at in this Fire Ins. Co. v. instance which dard Turner, argument 840; S.W.2d 230 fairly cannot to ac Turner v. construed Railway (Tex.1964). cuse the criminal conduct. specific part of the rebuttal next Railway complaint by next argument complained following: is the Capps improperly informed the is that Capps, they they “After hurt Mr. after its answers. This concerns of the effect of bad_” footing The ob- knew that jury ques the conditional submission of to this that it
jection at trial tions. first asked referred to some intentional action. The Railway provide failed to find whether the context, argument, easily is more under- ques place to work and the second a safe argued Capps’ attorney stood. that: provide tion asked whether failure Capps’ injuries. can’t cause they place After hurt Mr. he safe —and . this, sit still while he hears me talk about complains the trial Gentlemen, go out they Ladies and —then overruling objection to court erred in its they they up, there and clean this mess if attorney that the statement up kept they clean it have it clean *5 or jury the answered either one They Septem- it clean ever since. in “no,” it need not answer the two then ’87, ’85, ber it was clean in October of damages. question on It cites McFaddin say I today, and it’s clean and it dare Hebert, 314, 15 213, 118 Tex. 217 v. S.W.2d could on the have been clean 22nd Janu- (1929), proposition for the that: ary they of 1985 had exercised the de- ordinary issues are such that the [W]hen gree They of the puts care law on them. legal presumed know the men not to it, they reaped elected not to do con- the answers, argument of the effect the then sequences, permanently disabling one of telling legal of counsel them the effect of in employees, they their and then come answers, coupled the other cir- jury try get here before this to them would, law, cumstances, as a matter of say telling to that this man is not the opposite in the probably injury result to truth. side, and is reversible error. Now, Is fair? is that reasonable? inapposite. Here the trial McFaddin is you Is that the kind conduct think jury the not to answer court instructed ought away in our anybody get to questions one further unless it answered in systems day court and time? this charge yes under court’s and two the say I not to in say it’s and I ques- effect the answers to the the issues in this answer to first two clear to an tions one and two would be case, as to whether or the Railroad juror. ordinary failing in safe negligent to furnish a Generally, jury not be informed should that was a place to work and whether legal Magic the effect of its answers. cause, “yes.” answers should be those (Tex. Sibley, 851 Chef, Inc. v. reasonably is this Again, conclude that 1977, n.r. Civ.App.-San Antonio writ ref’d from the evidence. on or inferred based However, ques e.). jury if this read the tions, precisely it discover what Railway complains now would The through If the argued “reaped jurors them. that it the con- counsel told improperly ordinary intelligence can deter disabling one of exercise sequences, permanently they in the effect of their answers to employees, and then come mine their 296
issues,
argument
does
not constitute
is
it is designed
appeal
when
to
it
nothing
prejudice, contempt,
error
does
reversible
because
hatred or resentment
jury
more
what they already
opposing
than tell
party,
toward
or to arouse
Romero, 581
sympathy
know. Zamora v.
S.W.2d 742
party
to the extent that a
1979,
(Tex.Civ.App.-Corpus
upon
Christi
is
writ
verdict
secured
considerations out-
n.r.e.);
Engineer
McDonald,
ref’d
Green v. Hudson
side the record.
3 R.
Texas
See
(Tex.Civ.
ing Corporation, 305
201
S.W.2d
Civil
County
Practice in District and
1957,
(rev.
App-Fort
n.r.e.);
1983).
writ
Worth
ref’d
Courts
13.09.1
§
(Tex.Civ.
Davis,
Burrow v.
Railway
The evidence showed that the
1949,
n.r.e.).
App.-Amarillo
writ ref’d
reasonably
place
failed
to maintain
safe
prohibits attorneys
rule which
from inform
to work and
failure was
ing
findings
effect of their
injuries,
a cause
which were substan
designed
prevent
appeal
jurors
is
jury’s findings
tial.
None
other than
duty
ques
abandon their
to answer the
its
physical pain
and mental an
according
tions
evidence and
an
future,
guish in the
challenged
has been
as
particular
swer them so that a
desired re
lacking
evidentiary support.
sufficient
McDonald,
will
sult
be reached.
3 R.
See
argument
closing
on
of Capps
behalf
Texas Civil Practice
in District
aggressive
hyperbole
and it used
and meta
(rev. 1983).
County Courts
13.11.1
§
phors historically
advocacy.
tools of oral
—
argument
Capps’
attorney cannot rea
argument
designed
per
Final
to be
sonably
plea
as a
characterized
long
suasive
nature
so
as it is based
duty
to abandon its
answer
upon
facts
and issues raised
questions according to the evidence. Thus
inflammatory
evidence and not
so
nature
overruling
did
not err
jurors
improperly
to influence the
objection
argument
improperly
verdict,
render a
is not intrin
legal
told the
effect of its answers.
sically improper. Standard Fire Ins. Co.
838;
complains
584
S.W.2d at
Ramirez v.
Acker,
attorney argued
1054, 1055
134
Capps family
Tex.
S.W.2d
(1940);
Lighting
the “watershed of their lives.” While
Houston
Co.
it
& Power
argument “incurable,”
particu Fisher,
calls this
(Tex.Civ.App-
S.W.2d
complaint
lar
argument.
n.r.e.).
is made about this
Houston
writ ref’d
[14th Dist.]
*6
Moreover,
objection
record,
because no
to this ar From our
of the
review
whole
we
gument
trial,
complaint
was made
any
at
is
argument
conclude
the
behalf of
Reese,
waived. Standard
Ins.
v.
Fire
Co.
evidentiary
contained some
or
basis
If you
today,
make a mistake
conclude that
Rail-
it’s mis-
the
the Capps’ family
way
take
will
the
failed to show
the probability
bear
rest
has
their
They
standing,
argument
of
if
improper
lives.
that an
caused harm is
will,
“very
Armaged-
greater
on the
of
plain
probability
than the
ver-
that the
grounded
deon.”
proper proceed-
dict was
on the
ings
evidence;
and
this is not one of those
rare
harm
instances of incurable
from im-
Randy
got
justice
has
to have
at the
proper argument. Standard Fire Ins. Co.
of
jury,
hands
this
Ladies and Gentle-
v.
In our review We do not determine whether of the remit- recovery, titur, support proper any is factual dence is to standard insuffi- sufficient is ciency. We thus examine all of evi- but rather whether the evidence factual- re- ly support particular this in the record to determine whether sufficient to dence is supports damage covery. If the evidence insufficient sufficient evidence award, remitting portion support recovery, we only if some is so order a remittitur against is factually provide recovery so for a level insufficient or Moore, great weight supported by Pope evidence. preponderance the evi- 624; manifestly unjust. Pope Tex.R.App.P. as to be v. 711 S.W.2d at dence Moore, (Tex.1986). We all of the evidence We have examined passion, prejudice, not find or need some care, we be- and have outlined what jury’s part other motive on concerning portions significant lieve to be Moore, Pope order a remittitur. pain anguish. physical future mental S.W.2d at 624. suggestion will be There no work, mobility is physical pain totally
The award for that his future unable anguish support great degree, he impaired mental finds some or that testimony Capps, engage many his Randall wife and will be unable to physician. providing before this activities which are considered lifestyle. He not suffered Court is whether the evidence is sufficient a normal has $750,000.00 life-threatening injuries comparable award has person value for future and mental those of who suffered severe bums, that, degree, damage injuries. anguish. appears spinal It to a or brain impairment prevent his ob- physical pain will continue for the This does remain- normally suggests taining functioning his life. employment, der of This evidence context, proper physical or other- the award was and not excessive: in a mental or railroad; life. knee still longer leading can work on the wise a normal His functions, pain- pain, although imperfectly he continues have knee and the occasionally dislocated; fully. suggestion his knee knee he There is no becomes *7 any his depression, adversely part other of sleeping, suffers he has trouble affects insuffi- engage body. in We find the evidence to be physically he cannot strenuous by activities, longer and he no cient to the amount awarded recreational many jury present in case. We accord- engages physi- in forms of strenuous $420,000.00, labor; ingly suggest a remittitur to family had to move to a cal house; sufficient go the evidence is and his wife had back an amount which smaller support. to work. Therefore, thirty from the
However, days if within factors there are other Capps in this opinion, of files Several date must be considered as well. $880,000.00, judg- suggested causing a remittitur of mental an- Court situations will reformed future, be guish housing, in the such as in- ment shortfalls, will be employment accordingly. cause Otherwise come and have been by reversed and remanded. rectified award and Justice, GRANT, part concurring 1959, in (Tex.Civ.App.-Texarkana writ dissenting part. and dism’d). jury found that should $18,293 compensated year for his fu- I concur affirmance the ma- and pain anguish. majori- ture mental jority, but I dissent on the requirement of a $10,244 ty opinion compensate would him remittitur. year pain for future and mental an- physical There are no scales to convert I guish. prepared say am not that there pain anguish monetary and mental insufficient for the evidence is amounts. There for formula physical have made this award future for the value that should be awarded for en- pain anguish. and mental during physical pain anguish. and mental personal injury damages unliq- Because capable
uidated and not of measurement standard, large certain has fixing
discretion in the amount of the Phillips Company Petroleum
award.
Burkett, (Tex.Civ.App- n.r.e.).
Fort Worth writ ref’d Although pain award for future PENA, Individually Al and Alco D/B/A suffering case seems Industries, Appellant, large, it considerably shrinks consid- when ering years thirty-two age at the time of the trial and had a life LUDWIG, Appellee. Debbie forty-one expectancy years. brings This $20,000 the award less than for future No. 10-87-179-CV. pain anguish. and mental The evidence Texas, indicates constantly Appeals knee hurt Court of pain likely that this continue Waco. the rest life. of his Jan. 1989. only The evidence not indicates that the Rehearing Denied Feb. injury painful, nature of his but that it is debilitating also to the extent he will engage type
never be able
physical activity that had played
important part According in his life.
evidence, person very physical was a work, in his but in his leisure gar- his family. enjoyed
activities with He
dening, improvements, partic- making home
ipating games in active with his children working horses and cows. The ability
limitation things on his to do these naturally anguish.
would result in mental that he probability will have to have a
complete replacement in artificial knee anguish.
future is another source of mental damages measure
suffering opinion is a matter of
factfinder, and courts most instances findings
have been reluctant disturb the a court or on such matters where George
there is any evidence to it. Vaughan
C. Dyess, & Sons v.