Aрpellant Summer Musick Molina appeals from the trial court’s judgment awarding her less damages than the amount of damages found by the jury. We reverse and render judgment for the amount of damages found by the jury.
I. BACKGROUND
Appellant sued appellee Randall D. Moore for personal injuries which she suffered in a traffic accident on November 30, 1994, when she was sixteen years of age. Following the accident, appellant complained of soreness and pain, missed a period of work and received chiropractic care. Of the $3,900 in medical expenses which she claimed as a result of the accident, most 1 were incurred between December 2, 1994, and Marсh 27, 1995, while she was a minor and had not had her disabilities of minority removed. On September 16, 1995, appellant married. Suit was filed after her marriage, and in her own name.
The case was tried to a jury. The trial court submitted the question of appellant’s damages in the past for physical pain and mental anguish, physical impairment, and reasonable expenses of medical care by a broad form question calling for only one answer. The jury wrote the figure of $4,150 in the answer blank, but also made notations on the jury charge form indicating that the damages figure was comprised of $250 for physical pain and mental anguish, $0 for physical impairment, and $3,900 for medical care. 2
Appellee moved for Judgment Notwithstanding the Verdict, contending that the jury notations showed the damages finding included $3,900 for past medical expenses. Appellee’s motion urged that such amount of $3,900 should be deducted from the damages finding because appellant was a minor when the expenses were incurred, the cause of action for recovery of such expenses did not belong to her, and the evidence at trial did not establish that she was responsible for payment of the expenses. The trial court granted appellee’s motion and on August 10, 1998, signed a final judgment awarding appellant $250 together with all costs of court. After entry of judgment, appellee’s insurancе company issued checks payable jointly to appellant and her attorney in the amounts of $250 and $404. The checks were dated August 31, 1998, and October 2,1998, respectively. Appellee has attached copies of the checks to his appellate brief and to a Motion to Dismiss the Appeal for Mootness. Appel-
Appellant urges by two issues that the trial court erred in granting appellee’s motion for judgment notwithstanding the jury verdict, and prays that we reverse and render judgment for the entire amount of damages found by the jury. Appellee has moved for dismissal of the appeal because appellant accepted the benefits of the judgment entered by the trial court. Subject to its motion to dismiss the appeal for mootness, appellee urges that we sustain the trial court’s action in rеducing the jury’s damages answer by the $8,900, which the jury’s notations reflect was for past medical expenses. In the alternative, appellee asserts by cross-point that the evidence was legally and factually insufficient to support the jury’s finding of $4,150 in damages.
II. PAYMENT OF THE JUDGMENT
We initially address appellee’s Motion to Dismiss for Mootness which asserts that aрpellant’s voluntary acceptance of benefits of the judgment entered by the trial court bars her from prosecuting an appeal from the judgment. In support of his position, appellee cites
City of Mesquite v. Rawlins,
A. Law
A litigant cannot voluntarily accept the benefits of a judgment and afterward prosecute an appeal from that judgment.
Carle,
B. Analysis
Appellant accepted payment of both damages and court costs awarded to her by the trial court’s judgment of August 10, 1998. If she were seeking reversal of the judgment and remand for a new trial to obtain greater damages than she was awarded under the judgment, she would then be in the same posture as was the City of Mesquite in Rawlins, which appel-lee has cited to us. But she does not seek remand, and thus is not in the same posture as the City of Mesquite.
In
Rawlins,
the City accepted payment of the amount of taxes awarded to it by judgment, then sought on appeal to reverse that same judgment and obtain a new trial to seek a greater award of taxes
Should we determine, in considering appellant’s issue on this appeal, that the record contains error warranting reversal and thаt remand for a new trial would be the appropriate remedy, we are not authorized to remand for a new trial because appellant has requested this court only to reverse and render judgment in her favor.
See Stevens,
III. JUDGMENT NOTWITHSTANDING THE VERDICT
We next address appellant’s issues. She asserts that the trial court erred in granting appellee’s motion to disregard jury findings and render judgment notwithstanding the jury verdict. She requests thаt we render judgment for the full amount of damages found by the jury.
The jury charge submitted three elements of damages to the jury (physical pain and mental anguish in the past, physical impairment in the past, and reasonable expenses of medical care in the past) by a broad form question. The charge form gave the jury one blank to fill in the amount of money which would “fairly and reasonably compensate [appellant] for her injuries that resulted from the occurrence in question.” Neither appellant nor appel-lee objected to the manner in which the trial court submitted the damages question.
The jury followed the court’s instructions. It placed the amount of $4,150 in thе jury charge blank which stated “Answer: Summer Musick Molina $_” The jury additionally made notations which the trial court interpreted as the amounts the jury determined in its deliberations to award for each of the individual elements of damages which it was to consider in arriving at its one damages amount. See footnote 2, supra. The trial court granted appellee’s motion and rendered judgment for $250.
A. Law
The judgment of the court is required to conform to the pleadings, the nature of the case proved, and the verdict of the jury, if any.
See
Tex.R.Civ.P. 301;
First Nat’l Bank in Dallas v. Zimmerman,
B. Analysis
Appellee’s motion for judgment notwithstanding the verdict asserted that the jury segregated its award of damages into $250 for pain and suffering and $3,900 for medi
The trial court erred in granting appel-lee’s motion. We sustain appellant’s first and second issues.
IV. LEGAL AND FACTUAL SUFFICIENCY OF DAMAGES EVIDENCE
By a cross-issue, appellee challenges the legal and factual sufficiency of the evidence to support the damages verdict of $4,150. As subissues he urges legal and factual insufficiency of the evidence as to each of the elements of damages which the jury was instructed to consider in arriving at its verdict. Appellee also urges as a subissue that if the evidence is insufficient to support any element which the jury was instructed to consider in dеtermining damages, that the damages verdict must be reversed and the case remanded for a new trial pursuant to
Crown Life Ins. Co. v. Casteel,
A. Law
A broad form damages issue may include several elements of damages, yet allow the jury to give only one answer.
See Greater Houston Transp. Co. v. Zrubeck,
In jury cases the trial court is to submit the cause to the jury on broad form questions whenever feasible. Tex. R.Civ.P. 277. Even so, parties have the right to be able to determine, and to have an appellate court determine, whether properly submitted theories constitute the basis of the jury’s verdict.
Casteel,
When a broad form damages question which does not require separate answers for each element of damages is submitted without objection, the only way to effectively challenge the damages amount on appeal is to address each and every elemеnt and show that not a single element is supported by sufficient evidence.
See Sholl,
B. Analysis
The Texas Supreme Court addressed the commingling of valid and invalid
liability
theories in a single broad form question in
Casteel.
Appellee asserts that the same reasoning expressed in
Cas-teel
should and does apply to the damages question submitted by the trial court in this matter. Even if we assume that
Cas-teel
applies to broad form damage questions as well as broad form liability questions, however, we do not find appellee’s position to be well founded. Appellee did not timely and specifically object to the form of the damages issue.
See
Tex .R.CrvP. 272, 274;
Casteel,
22 S.W.3d
Appellee correctly notes our standard of review for his insufficient evidence challenges to the jury’s damages finding. In attacking the legal sufficiency of the evidence to support the damages finding, he must show that there is no evidence to support the finding.
Harris County Appraisal Dist. v. Southeast Texas Housing Finance Corp.,
In viewing the evidence in the light most favorable to the jury’s finding of a monetary amount to compеnsate appellant for her damages, we need not go beyond the elements of physical pain and physical impairment which the jury was instructed to consider. Appellant and her mother, Shelley Musick (Ms. Musick), testified that appellant was injured in the accident. Ms. Musick testified that appellant woke up crying with a headache and very stiff neck on the morning after the accident, whereupon an appointment was made with a chiropractor at the urging of a family friend. The chiropractor showed x-rays of appellant to Ms. Musick and said that appellant had some damage that could possibly stay or get better. Records from the chiropraсtor’s office, admitted without limitation, reflect that appellant complained of her neck and back hurting. Appellant received chiropractic care regularly from December, 1994, through March, 1995. The records show a diagnosis of lumbar sprain, cervical sprain/strain, and “myalgia and myositis, unspc.” Appellant and her mothеr concurred that the chiropractic care helped her symptoms. She was taken off work for one and one-half weeks because of the effects of the accident.
We are not free to set aside a jury verdict merely because we feel a different result is more reasonable. Pool
v. Ford Motor Co.,
Disregarding the jury’s notations, as we must in our evidentiary review,
Oldham,
CONCLUSION
Having sustained appellant’s two issues and overruled appellee’s cross issue, we reverse the judgment of the trial court to the extent it granted appellee’s motion for judgment notwithstanding the jury’s verdict. We render judgment for appellant in the amount of $4,150. Except as specified herein, the judgment of the trial court is affirmed. Appellee will receive credit for payments prеviously made to appellant pursuant to the August 10, 1998, judgment. Tex.R.App.P. 43.2(c), 43.6.
Notes
. There is a question whether $90 of the expenses were incurred after appellant was married. The question is not material to our decision.
. The broad form question asked the jury, "What sum of money, if paid now in cash, do you find would fairly and reasonably compensate SUMMER MUSICK MOLINA for her injuries that resulted from the occurrence in question?” The jury- was instructed to consider only the following elements of damages, and to answer in dollars and cents for damages, if any, that were sustained in the past:
Element a. Physical pain and mental anguish
Element b. Physical impairment
Element c. Reasonable expenses of necessary medical care
The jury was instructed to "Write your answers to the questions in the spaces provided." In the one space given the jury to placе its answer to the damages question, the jury wrote "$4150.00.”
The following notations were handwritten above the total damages answer, but not in the space provided for the jury's answer:
A=$250.00 B=$0 C=$3,900.00
. See Tex.R.App.P. 10.1, 10.2.
. The question of whether voluntary payment of the judgment by appellee’s insurance carrier would preclude appellee from seeking a new trial is not before us.