*1 the first six have reviewed We proponents by the
points brought forward challenging legal and factual sufficien jury find
cy the evidence to lacked testamen ings that Miss Chambless to execute the will and mental tary capacity review capacity to execute the deed. Our out been under the standards set has Indemnity Accident & Lucas v. Hartford Co., (Tex.1977); Garza Alviar, (Tex.1965). contentions, We find no merit to The cause points each of such is overruled. for a new is remanded to the trial court trial. and REMANDED.
REVERSED SOUTHWESTERN BELL TELEPHONE
COMPANY, Appellant, al., Appellees. Ruth DAVIS et No. 6062. Texas, Appeals Court of Civil Waco. 3,May *2 Tucker, Jerry
James E. Barden R. Sr., Antonio, appellant. for San Jr., Whitehurst, and Mack William O. Kidd, Whitehurst, Dicky Grigg, Spi- Kidd & Crawford, vey Grigg, Joseph & V. Stubbe- man, McRae, Browder, Sealy, Laughlin & Austin, appellees.
OPINION
McDONALD, Chief Justice. appeal by This is an defendant South- judgment against western Bell from it in plaintiff $21,460.15, favor of Davis for $96,717.92, plaintiff DeWitty for in an auto- mobile collision case. April plaintiffs
On Davis and proceeding were east on 12th Austin, Street in Texas. Mrs. Davis was car, driving passen- her was a ger. They were in a funeral about 15 miles hour. Esiquel employee Mindieta an Bell Southwestern proceeding north on Valley Pleasant Road towards its intersection with 12th plain- He ran into with Street. and collided intersection, tiff’s vehicle injuring in the both against
Pláintiffs filed this suit alleging western Bell Mindieta in the course employment, negligent failing of his in keep proper lookout and in failing to timely apply his brakes. Defendant an- by general swered denial counterclaim alleging plaintiff negligent Davis was in lookout, failing to keep failing to brakes, timely apply disregarding and in light. red Trial was to a which found: 1) Esiquel in Mindieta was lookout, timely application his and in the proximate which was cause of the occurrence.
2) negligent: in Ruth Davis was not lookout; timely application in of her brakes; signals; observing traffic or in speed. the control of her 3) conditionally upon Was submitted on finding negligence part of both 10 n insuffi- 2) There is no evidence and/or parties, inquiring comparative neg- of the jury’s ligence parties, according- and was cient ly not 2, finding plaintiff answered. answer to Issue
4) plaintiff negligent, and such damage Was the issue as Davis not damages as fol- weight pre- DeWitty, against great and found ponderance lows: the evidence. *3 $3,367.92: past care. A. 3) ex- permitting The trial erred in court $5,850.00: past earnings B. loss. pert testify Ruble to when the witness jury, fully and facts were before the $7,500.00: mental past pain C. and available for assessment without testi- anguish. mony expert an who was not $12,500.00: D. future medical care. of the accident present at the scene $50,000.00: earnings. E. future loss of when it occurred. $10,000.00: pain future F. and mental 4) and/or insuffi- There is no evidence anguish. jury’s the support to cient evidence 5) plaintiff as damage Was the issue to finding plaintiff to Issue 4 answer Davis, follows: and found her as sum of DeWitty’s damages in the total $2,120.15: A. past medical care. $96,716.42. $1,640.00: past earnings B. loss. 5) There is no evidence and/or insuffi- $4,000.00: past pain C. and mental jury’s the support cient to evidence anguish. plaintiff Da- finding answer to Issue D. future $500.00: medical care. $22,- damages in the total sum of vis’s $4,000.00: earnings. E. future loss of 460.15. pain F. mental future $250.00: 6) no insuffi- There is evidence and/or anguish. support jury’s the cient evidence to 6) damage Fixed as to Mrs. answers to 9 and 10. Issues Davis’s car. complains jury’s of the find- Contention 7) by Fixed for rental of a car $200.00 ing Bell’sdriver Mindie- that Southwestern being Mrs. Davis while her was re- car failing keep proper in paired. negligent ta was to a brakes; timely apply his con- lookout and to 8) damage Fixed to $681.10 jury’s finding complains tention 2 of the western Bell’s vehicle. plaintiff negligent; Davis was not and con- 9) Found the entrustment of the van to complains per- tention 3 of the trial court’s gross Mindieta Southwestern Bell was Ruble, reeon- mitting witness an accident negligence. testify in the case. expert, structionist to 10) exemplary damages Awarded of: to Mrs. plaintiffs were There is evidence $7,500.00to Mrs. Davis. per approximately at 15 miles judgment The trial court rendered on the hour; travelling approxi that Mindieta was $21,460.15; plaintiff verdict for Davis for hour; plaintiffs mately 25 miles that plaintiff DeWitty and for 10 or 11 cars procession were in a funeral policeman; the that all cars had back from Appellant appeals points on 16 contend- on; plaintiffs were a half lights their that ing: them; the car in front of length car behind 1)There is no evidence insuffi- and/or of cars that there were a number behind support jury’s cient evidence to the Mindieta hit procession; them in the that 1, finding answer to Issue that Min- intersection; plaintiffs in the that at the failing keep dieta was in vehicles, speed position of ob lookout, of both timely apply and to structions, line, visibility point at against and such of both vehicles could see great weight preponderance drivers driver, approxi- evidence. the other was distance Christi) Wagley, Tex.Civ.App. (Corpus mately away two three-fourths second NRE, Gutierrez, point impact; Pace v. from the Mindieta 437 S.W.2d Tex. NRE, could have in three-fourths of a (Amarillo) reacted Civ.App. S.W.2d 356. second, stopped approximately three- object not And defendant did witness second; fourths of a that he could have thereby waiving testimony Ruble’s feet; stopped the van in 40 that northbound point. Champion Mobile Homes v. Rasmus- Valley travellers on Pleasant Road could sen, Tex.Civ.App. (Tyler) through see the intersection which the fu- Adams, Tex.Civ.App. (Aus- Battles v. procession neral proceeding from 350 tin) NRE, feet away. plus This the fact that all cars Contentions 2 and 3 are overruled. in the procession funeral had their head- lights on authorized the to infer that 5 assert there is Contentions 4 and no Mindieta would have to notice that funer- evidence or insufficient al going through the inter- $96,- jury’s award to *4 section. 716.42, and to Mrs. Davis of
Mrs. Davis was
at fif
findings:
specifically attacks
Defendant
length
$12,500.00
teen miles
hour
car
one-half
DeWitty
4 D which awarded Mrs.
care;
behind the car ahead of her in the funeral
for future medical
4 E which awarded
procession.
policeman
leading
A
was
$50,000.00
DeWitty
Mrs.
future loss of earn-
procession. There is evidence that at the
ings;
D
awarded Mrs. Davis
5
time
light
facing
care;
Mindieta turned
and 5 E which
future
$500.00
green,
just clearing
an automobile was
$4,000.00future loss of
awarded Mrs. Davis
Thus,
jury
intersection.
could reason
earnings.
complains
Defendant further
of
ably
partially
Hanson,
infer that Mrs. Davis was
testimony
of the witness Dr.
a
light facing
the intersection when the
her
expert, who
vocational rehabilitation
testi-
Moreover,
turned red.
there is a universal
objection, as to loss of
extensively
fied
over
developed
years
custom
over the
for auto
DeWitty in the future.
earnings by Mrs.
stop
to
mobiles
to allow a funeral
years old.
Mrs.
was 67
Her
to cross an intersection.
v.
See: Sundene
years
experience
teaching
includes 22
work
164,
Koppenhoefer,
Ill.App.
98
343
N.E.2d
schools,
public
produc-
music in the Austin
songs,
spiri-
program of
and
tion of a radio
Ruble,
directing
The
years; organizing
witness
an accident re-
tuals for 6
and
persons
expert,
extensively
involving
constructionist
testified
choral
1400-1500
concerts
Conventions;
qualifications; computed
as to
braking
Baptist
for
and National
State
involved,
weddings, teas
lecturing, playing
distances and times
and demon
and
funerals,
songs
jury
preci
writing
publishing
strated to the
with mathematical
and
sion that
if Mindieta had
At the time of the accident she
maintained
and music.
$10,500.00
timely applied
per year from
earning
lookout and
his was
some
Church,
hap
Baptist
would not have
her
at
accident
music
Ebenezer
conventions,
pened.
experts
weddings,
testimony
The
of
are com
and National
State
teas,
monly permitted
testify
hymnbook
to such matters
sales.
funerals and her
She
$5,850.00
as
expertise.
above if within their skill and
has lost
from the date of the acci-
41;
Dunham, Tex.,
Barker v.
sustained
dent
to the time of trial. She
Evidence,
hand, shoulder,
Ray,
injuries
hip,
Texas Law of
right
McCormick &
to her
(1956);
she has devel-
pp.
Section
234
Lawson v. knee and neck. As a result
McDonald,
(Waco)
right
of
in her
hand
Tex.Civ.App.
oped
State
traumatic arthritis
351;
Highway
organ
pi-
playing
State
which affects
Dept.
Hinson, Tex.Civ.App.
(Corpus
developed
progressive
v.
ano.
has
de-
She
Christi) NRE,
Pappas
formity
right
pain
517
hand.
suffers
S.W.2d
She
Laughlin, Tex.Civ.App. (Beau
intensify
Estate
will
with
and limitations which
time;
mont) NRE,
McIlroy
synovitis
has active
in her index
she
9 found the entrustment of
long
joint
Issue
metacarpophalangeal
right
permanent;
hand which is
arthritic
Bell
by
Mindieta
the van to
Southwestern
changes
hip
in her
and knee which are
negligence, and Issue 10 awards
gross
permanent,
pain
and will result in increased
exemplary
each
to both
disability
by.
time goes
Since the
accident she has been unable to maintain
that
Bell
The evidence is
Southwestern
expectancy
her former life.
a life
She has
inquiring
without
or check-
hired Mindieta
of between
years.
10 and 14.9
There is
record;
driving
ing into his
that he had his
evidence from which the
could con-
years
two
suspended
prior
driver’s license
clude that she is or in the near future will
employment by
Bell for 6
Southwestern
totally
be rendered
disabled from a voca-
months as a habitual violator of the traffic
standpoint.
tional
laws;
employ-
after
that he
convicted
had
in medical
ment
Bell for
traffic
Southwestern
expenses prior to trial. There is evidence
accidents;
that
violations which involved
therapy
that she should continue
and medi-
he
driver’s license when em-
had
valid
cal
may
treatment and that she
need an
Bell,
ployed by
that
Southwestern
operation. Appellant
in its brief concedes
any
Bell did not have
actual knowl-
western
there is evidence to
some
edge
driving
foregoing
of his
The
record.
$6,600.00 in future medical expenses.
amply
evidence would
sustain a
The award of future medical ex
ordinary negligence for the entrustment of
penses is a matter about
precise
which no
*5
Transports,
the vehicle to Mindieta. Union
required,
being
evidence is
it
par
a matter
Braun, Tex.Civ.App.
(Eastland)
Inc. v.
ticularly
jury,
upon
for the
and one
927;
NWH,
Mundy
318
v. Pirie-
S.W.2d
jury may
make its award based on the
Co.,
314,
Slaughter Motor
146 Tex.
206
injuries,
nature of the
the medical care
587;
Nelson, Tex.Civ.App.
S.W.2d
Hines v.
trial,
rendered before
and the condition of
NWH,
(Tyler)
547
378.
S.W.2d
injured
party. City of Houston v.
Moore,
NRE,
Tex.Civ.App. (Houston 1)
389
But
same will not sustain
545;
S.W.2d
Telephone
Southwestern Bell
Howard,
gross negligence. Bennett v.
141
Company
Thomas,
v.
Tex.Civ.App. (Corpus
709;
101,
Tex.
Abercrombie Co.
Christi)
686,
535
part,
S.W.2d
Aff’d in
re
Scott,
(Galveston) NRE,
Tex.Civ.App.
267
v.
part
Tex.,
versed in
on
grounds,
other
554
206;
Industries, Inc.
S.W.2d
Atlas Chemical
S.W.2d 672.
Anderson, Tex.,
v.
Contentions 4 and 5 are overruled. appear From the record it does not consciously indiffer- Southwestern Bell Contention 6 asserts there is no evidence plaintiffs, or rights insufficient ent to the or welfare of jury’s answers to Issues 9 and 10. or- but that the entrustment was
196 negligence only. dinary Contention 6 is MANOR NURSING CEN- sustained. RETAMA GERIATRICS, TERS, INC. accordingly judgment The is reformed to INC., Appellants, recovery delete from the of each Roy COLE, Roy Lee d/b/a Lee Cole Additionally from the record we Contractor, Appellee. judgment opinion are of the as to No. 1353. plaintiff DeWitty is further excessive in the Texas, Appeals Court of Civil judgment sum of and that the Corpus Christi. to her should be reversed for this reason 10, May 1979. only. Appellee DeWitty given days $15,- from this date to file a remittitur of 31, May Rehearing Denied 1979. 000.00, Flanigan Rule 440 TRCP. v. Cars well, 835; 159 Tex. World S.W.2d Hicks,
Oil Co. v. 129 Tex. Satterwhite, Tex.Civ.App. Caswell (Waco) Big Town S.W.2d Newman, Nursing Tex.Civ.App. Home v. NWH, (Waco) If days judg remittitur is filed within 10 ment of the trial court will be reformed and DeWitty. appellee
affirmed as to judgment The is severed and Reformed $13,960.15, and Affirmed in the amount of appellee as to Davis. appellee as to Reversed and Remanded DeWitty.
OPINION AFTER FILING REMITTITUR
Appellee DeWitty having filed remittitur $15,000. Court, suggested by this judgment of the trial court is reformed in
conformity with such remittitur and is af-
firmed in the amount of taxed n appeal against appellee Costs of and n Davis; against appellee DeWitty; Ve against appellant.