CITY OF BALCH SPRINGS, TEXAS, Appellant v. ENRIQUE SOSA, Appellee

 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-00278-CV
............................
CITY OF BALCH SPRINGS, TEXAS, Appellant
V.
ENRIQUE SOSA, Appellee
.................................................................
On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 85-15948-M
.................................................................
OPINION ON REMAND
Before Justices Whitham, Lagarde and Whittington
Opinion By Justice Whittington
        This case was remanded by the Supreme Court of Texas with the directive that the sufficiency of the evidence relating to Enrique Sosa's diminished earning capacity be reconsidered under the standard mandated in Pool v. Ford Motor Co., 7l5 S.W.2d 629, 635 (Tex. l986).
        In their first point of error, the City argues that there was no evidence or insufficient evidence that the handcuffing caused the injury to Sosa's wrist. A review of the record shows that Sosa testified that on the day of his arrest, his wrist was numb and he could not feel anything in his palm or index finger. He described the feeling as similar to the feeling of anesthesia from a dentist's shot.
        Dr. Mark Pretorius, a neurologist, testified that he performed tests on Sosa and found decreased sensation to pinprick in the thumb and first finger of the right hand. Dr. Pretorious testified that Sosa related no previous medical problem with his wrist. He testified that it was not clear whether the symptoms exhibited by Sosa were coming from a median or radial nerve injury. He testified that injury to both nerves was possible due to the handcuffing incident but that it would be difficult to damage the median nerve with handcuffs. The results of his tests showed that the median nerve was abnormal or injured.
        George Sosa, Sosa's cousin, testified that he overheard Sosa tell the arresting officer that the handcuffs were "too tight." In deciding a "no evidence" point of error, the appellate court is to consider only the evidence and inferences from the evidence which tend to support the findings and conclusions and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex. 1985). The jury's fact findings must be upheld by the appellate court if there is more than a scintilla of evidence in support thereof. Stedman v. Georgetown S. & L. Assn., 595 S.W.2d 486, 488 (Tex. 1979). There is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact. Kindred v. Kon/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). In testing the findings, the appellate court must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings. International Armament, 686 S.W.2d at 597; Stedman, 595 S.W.2d at 488; Calvert, R. W. "No Evidence and Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361 (1960).
        In considering an "insufficient evidence" point of error, the Court must consider all of the evidence in the case, including that contrary to the verdict. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). The Court must determine whether the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, before it can set aside the jury's finding. In re: King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). In summary, the Court must determine whether the evidence which supports the jury's answers to the special issues is so weak, or the evidence to the contrary is so overwhelming, as to justify a setting aside of the verdict and remanding for new trial. Garza v. Alviar, 395 S.W.2d at 823.
        The testimony of Sosa and his cousin, alone, is sufficient to show the causal connection between the handcuffing and the injury. Lay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition. Morgan v. Compugraphics Corp., 675 S.W.2d 729, 733 (Tex. 1989). Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation. See id.
        As set forth earlier in this opinion, the record shows that Sosa immediately complained that the handcuffs were too tight and began experiencing pain during and after being handcuffed. We hold that the evidence was sufficient, and that there was, necessarily, some evidence that the injury was caused by the handcuffing. We overrule point of error one.
        In point of error two, which we now readdress, the City contends that the jury's finding of damages for loss of past earnings and loss of future earning capacity is not supported by factually sufficient evidence and is contrary to the preponderance of the evidence. As set forth earlier, when addressing a factual sufficiency point, we must consider and weigh all of the evidence to determine whether it is insufficient or whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool, 7l5 S.W.2d at 635; In re King's Estate, 244 S.W.2d at 661.
        The jury awarded Sosa $12,200 for loss of past earnings and $3,000 for loss of future earning capacity. Sosa testified that at the time of the injury he was working about 65 hours per week and was paid $6.30 per hour, plus a monthly safety bonus of $250, resulting in an average income of $400 to $450 per week. Sosa worked the same number of hours in the summertime as he did in the winter. This testimony was confirmed by Sosa's cousin. Sosa was arrested on May 29, l985, and with the aid of a wrist brace, continued working after the injury until January of l986 when his wrist ailment worsened to the point that he could no longer work. Sosa testified that even though he was no longer driving trucks, his wrist had not improved. After leaving his job, Sosa moved to El Paso where he has earned about $50 per week by working part-time jobs. Sosa stated that, due to his injury, he was not able to perform the tasks required of a truck driver and that he has no training except as a truck driver.
        Sosa's doctor testified that Sosa had suffered nerve damage to his wrist caused by the pressure of the handcuffs. When Sosa's wrist failed to respond to treatment, Sosa's physician referred him to a specialist for further evaluation and treatment. The type of additional treatment would depend on the severity of the injury, but it could include the injection of steroids or even surgery. Because he was unable to afford the cost, Sosa never saw the specialist. The City contends there was no basis for the jury's calculation due to the following: Sosa had an irregular job history and did not want a job other than truck driving; Sosa did not testify as to his earnings at his previous jobs; Sosa continued to work at the same job for the same rate of pay for six or seven months after the injury.
        A person who has been injured by another's wrongful act is entitled to be compensated for his loss of past earnings and for such future losses that stem from his impaired earning capacity. See McIver v. Gloria, l69 S.W.2d 7l0, 7l2 (Tex. l943). Each case must be judged on its facts and while ascertaining the amount which a person might have earned in the future is inherently uncertain, this determination is left to the discretion of the jury and need only be proved with the degree of certainty of which the case is susceptible. Id; Crown Plumbing, Inc. v. Petrocak, 751 S.W.2d 936, 939 (Tex. App.--Houston [14th Dist.] 1988, writ denied). The jury is limited only to the extent that its judgment must be based upon facts and not mere conjecture. Proof is required to establish the extent and amount of the damages and where the plaintiff is employed at a fixed wage, the amount of his previous earnings should be shown. "If plaintiff's earning capacity is not totally destroyed, but only impaired, the extent of his loss can best be shown by comparing his actual earnings before and after the injury." McIver, 169 S.W.2d at 712.
        We determine that the evidence was sufficient to provide the jury with a basis for calculating Sosa's losses. Sosa established the fact that he was injured; that the injury affected his ability to perform his regular job as a truck driver, the only type of work for which he had training. He established his actual earnings before the injury as well as his post injury earnings. Although Sosa did continue working at his job for six to seven months after the injury, the evidence established that he was ultimately forced to leave due to the worsening condition of his wrist. With the exception that he had earned approximately $50 per week, Sosa had not otherwise worked since January of l986 through the time of trial. Thus, the jury had sufficient evidence to estimate Sosa's loss with reasonable certainty.
        The City also contends the award was excessive. Whether an award of damages is excessive must be determined from the facts of each case. Higginbotham v. O'Keeffe, 340 S.W.2d 350, 359 (Tex. Civ. App.--Amarillo l960, writ ref'd n.r.e.). A complaint for excessive damages is subject to the same test as for any factual insufficiency question. Pope v. Moore, 7ll S.W.2d 622, 624 (Tex. l986). Sosa was a trained truck driver and due to his injury, he was unable to continue in that occupation suffering a loss of earnings in the past as well as in his capacity for future earnings. At the time of trial, Sosa has not worked on a full-time basis for twenty-three months. During that time he earned only a small fraction of what he had previously made. We have previously detailed Sosa's [pre-injury and post-injury] earnings. We conclude that the jury's award was not excessive and was supported by the evidence. Point of error two is overruled.        
        Point of error three concerns jury question two which inquired:
 
    Do you find by a preponderance of the evidence that on the occasion in question the Plaintiff, Enrique Sosa, was negligent in failing to follow the instructions of the police as to what to do after the handcuffs were placed on the Plaintiff; and, if you do so find, do you further find by a preponderance of the evidence that such negligence, if any, was a proximate cause of the occurrence in question?
 
        Answer "yes" or "no".
 
        ANSWER: No
The city variously argues that Sosa was negligent as a matter of law and that the jury's failure to find negligence and proximate cause in response to question two was against the great weight and preponderance of the evidence.
        The City's claim that Sosa was negligent per se is predicated on the fact that Sosa left his truck in a no parking area after seeing the "No Parking" sign in the parking lot. The trial court refused to include the City's requested instruction that "[t]he law forbids parking a commercial vehicle on any public or private property within the City of Balch Springs that is not on a truck route. A failure to comply with this law is negligence." The City relies on El Chico Corp. v. Poole, 732 S.W.2d 306, 3l2 (Tex. l987) and Nixon v. Mr. Property, Management Co., 690 S.W.2d 546, 549 (Tex. l985) for the proposition that the unexcused violation of a statute or ordinance constitutes negligence as a matter of law, if such statute or ordinance was designed to prevent injuries to a class of persons to which the injured party belongs.
        A criminal statute will not be accepted as a standard for negligence unless one of the purposes of the statute is to protect the class of persons to whom the injured party belongs from the hazard involved in the particular case. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. l979). We agree with Sosa that the ordinance, which prohibited the parking of trucks on the K-Mart parking lot, had as one of its obvious purposes the protection of the parking lot area from damage, not protecting the driver from personal injury. However, even if negligence per se, were established, the City was still required to show that such negligence was a proximate cause of the injury or damages sustained. Alpine Tele. Corp. v. McCall, l43 Tex. 335, 341, l84 S.W.2d 830, 834 (l944); Searcy v. Brown, 607 S.W.2d 937, 94l (Tex. Civ. App.--Houston [lst Dist.] l980, no writ); see Carter, 584 S.W.2d at 278;
        Two elements must be present in order to establish proximate cause: (l) cause in fact, and (2) foreseeability. Here, the City failed to establish that Sosa's conduct in illegally parking his truck caused his injuries. The arresting officer testified that he had a duty to exercise reasonable care when handcuffing prisoners. He also testified that Sosa was cooperative and that he followed the officer's instructions. Sosa's violation of the ordinance was a prior cause that did "nothing more than furnish the condition or give rise to the occasion" which made the injury possible. Missouri-Kansas-Texas R. Co. of Texas v. McLain, l05 S.W.2d 206, 208 (Tex. Comm. App. l937, opinion adopted); City of Bishop v. S. Texas Electric Coop., Inc., 577 S.W.2d 33l, 336 (Tex. Civ. App.--Corpus Christi l979, no writ); Robertson v. Southwestern Bell Tele. Co., 403 S.W.2d 459, 473 (Tex. Civ. App.--Tyler l966, no writ).
        With regard to the claim that the jury's response to question two was against the great weight and preponderance of the evidence, we note that this question related to Sosa's alleged failure to follow instructions after the handcuffs were placed on him. There was no evidence that Sosa failed to follow police instructions or was anything other than fully cooperative with the authorities. We therefore conclude that the trial court did not err in refusing the City's requested instruction on negligence and that the jury's answer to to question two was not against the great weight and preponderance of the evidence. Point of error three is overruled.
        In their fourth point of error, the City argues that the trial court erred in denying its motion for new trial based on alleged jury misconduct which denied the City due process of law. Attached to the City's motion was the affidavit of one juror wherein he alleged that: 1) certain jurors were disturbed that appellant had been arrested for a parking violation; 2) jurors made assumptions not in evidence about a photo exhibit; 3) one female juror told other jurors that she had experienced pain from an arm injury and that appellant would probably need surgery; and 4) jurors considered possible attorney's fees when awarding damages. Under Rule 327 of the Texas Rules of Civil Procedure, the juror could not testify to, nor could his affidavit be received, concerning these matters. No evidence of "outside influence" on the jury was shown by the juror's affidavit nor asserted by the motion for new trial. See Weaver v. Westchester Fire Ins. Co., 739 S.W.2d 23, 24-25 (Tex. 1987). Therefore, the trial court properly overruled the City's motion for new trial. The City's fourth point of error is overruled.
        The judgment is affirmed.
 
                                                          ________________________________
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
 
880278RM.U05
 
 
File Date[10-23-89]
File Name[880278RF]