Sylvia Luna Morgan and Larry Richard Morgan v. Monica Marak Brown--Appeal from 146th District Court of Bell County

morgan TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00543-CV
Sylvia Luna Morgan and Larry Richard Morgan, Appellants
v.
Monica Marak Brown, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 142,218-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

Sylvia Morgan appeals from a trial-court judgment awarding her $6,500 in her suit against Monica Marak Brown to recover compensation for injuries Morgan sustained in an automobile collision. (1) We will affirm the trial-court judgment.

 
THE CONTROVERSY

Morgan and Brown were operating their respective motor vehicles on a public way when they collided, resulting in Morgan's injuries. At trial, the judge refused Morgan's request that the charge include an instruction regarding her contention that Brown was negligent per se in failing to obey a yield sign and a no-left-turn sign. (2) The charge submitted to the jury questions of ordinary negligence and comparative responsibility for the harm for which Morgan sought recovery. See Tex. Civ. Prac. & Rem. Code Ann. 33.003 (West Supp. 1996). The jury found Brown negligent and fixed $10,000 as the amount reasonably necessary to compensate Morgan for her injuries. (3) The jury found Morgan 35% responsible for the harm and Brown 65% responsible. The trial judge rendered judgment for Morgan, on the verdict, in the principal amount of $6,500 or 65% of the $10,000 found by the jury. Morgan appealed to this Court.

 
DISCUSSION AND HOLDINGS

In her first point of error, Morgan complains the trial judge erred in refusing her request that the charge include an instruction regarding the theory of negligence per se. The doctrine of negligence per se may be stated as follows: "The unexcused violation of a statute setting an applicable standard of care constitutes negligence as a matter of law if the statute is designed to prevent an injury to that class of persons to which the injured party belongs." El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex. 1987). The evidence was controverted on whether Brown drove her automobile in a manner contrary to the instructions indicated by the yield sign and the no-left-turn sign. It was therefore error for the trial judge to refuse Morgan's requested instruction. See White v. Hughs, 867 S.W.2d 846, 852 (Tex. App.--Texarkana 1993, no writ). We believe, however, that the error was harmless in the circumstances of the case.

The substance of Morgan's theory on appeal is that a jury finding that Brown operated her automobile in violation of the two traffic-control devices would preclude the jury from apportioning responsibility for harm under section 33.003 of the Texas Civil Practice and Remedies Code. Morgan offers no authority for that contention and we find none. The text of section 33.003 applies explicitly to harm resulting from any "negligent act or omission;" it does not distinguish between a standard of care ordained by a statute and the standard of ordinary care required by the common law. See Tex. Civ. Prac. & Rem. Code Ann. 33.003 (West Supp. 1996). We overrule point of error one.

In point of error two, Morgan contends as follows: "The jury finding was factually and legally insufficient in attributing 35% liability to the appellant [Morgan] as such finding was unsupported by the evidence and goes against the great weight and preponderance of the evidence." In consequence, Morgan contends, she "is entitled to a new trial based upon the fact that [the] verdict of the jury with regard to negligence is against the great weight and preponderance of the evidence." We construe this point to be a complaint that the evidence is legally and factually insufficient to support the 35% of responsibility assigned to Morgan in the verdict; and that the jury's failure to assign 100% responsibility to Brown was so against the great weight and preponderance of the evidence as to be manifestly unjust.

In her motion for new trial, Morgan did not complain the evidence was factually insufficient to support the jury's finding that Morgan was 35% responsible for the harm she sustained. She therefore did not preserve the complaint for appeal. Tex. R. Civ. P. 324(b)(2). We overrule the point of error in that regard. She did complain, in her motion for new trial, that the jury's failure to find Brown 100% responsible for the harm "was contrary to the overwhelming weight and preponderance of the evidence." We will consider that point on appeal together with her point that there is no evidence to support the jury finding that Morgan was 35% responsible for the harm she sustained. Both require a summary of the entire body of evidence on the issues. See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361 (1960).

Morgan testified that Brown drove from a parking lot onto the roadway on which Morgan was traveling and into her path, in violation of the traffic-control devices mentioned, resulting in the collision. When the investigating officer arrived, the two automobiles had been moved from the roadway. In his opinion, the conditions at the scene indicated that Brown failed to yield the right of way and was attempting an illegal left turn when the collision occurred. Brown testified that Morgan's operation of her automobile caused the collision because she drove to the left, indicating that she was going around the point where the collision occurred, then veered suddenly back to the right to collide with Brown's automobile which was not blocking Morgan's passage on the roadway. Given this rather pointed conflict in the testimony about the particulars of how the collision occurred, we may not say there is a complete absence of evidence supporting the jury finding that Morgan was negligent and 35% responsible for the harm. Nor may we say the jury's failure to find Brown 100% responsible is so against the great weight and preponderance of the evidence as to be manifestly unjust. We therefore overrule point of error two.

In Morgan's third point of error, she complains as follows:

 

The findings of the jury with respect to each issue of damages are against the great weight and preponderance of the evidence, there being no expert evidence to contradict the testimony of three medical doctors and one doctor of chiropractic as to reasonable and necessary medical expenses, pain and suffering, and testimony of plaintiff and two other witnesses as to lost earnings.

 

We must detail the evidence relevant to the damages issues in order to determine whether the jury's findings are so against the great weight and preponderance of the evidence as to be manifestly unjust because they demonstrate bias or because the findings shock the conscience. See Powers & Ratliff, 69 Tex. L. Rev. at 535-36; see also Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988).

The jury found the following sums reasonably necessary to compensate Morgan for her injuries: physical pain and mental anguish $1,500; physical impairment $5,000; and $3,500 for medical and chiropractic care. The jury declined to find any sum reasonably necessary to compensate Morgan for lost earnings or lost earning capacity.

Morgan testified in support of her injuries. She admitted, however, that at all material times she suffered work-related stress problems for which she had filed a different lawsuit seeking damages from others for mental anguish they caused. Other evidence showed that she had a history of headaches and marital problems before the collision, and that she received treatment and medication for those problems similar to the treatment and medication she testified was required by the injuries she sustained in the collision. Morgan's original treating physician, who examined her after the collision, testified he found she had sustained no permanent physical impairment. A chiropractor who began treating Morgan sixteen months after the collision testified that in his opinion she had a 21% permanent physical impairment that would reduce her future earning capacity. The jury might have doubted his testimony somewhat, however, because he testified that his treatment of personal-injury cases was conditioned upon his approval of the patient's attorney and he admitted he had a personal financial interest in the success of Morgan's suit against Brown. The evidence also showed that Morgan worked for the attorney who represented her in the present lawsuit and that he referred her to the chiropractor.

Morgan argues specifically that the jury's answers to the damages issues cannot stand because Brown did not adduce expert opinion testimony to contradict the opinion testimony of her expert witnesses. We find no support for that theory. The jury is not bound by opinion evidence given by expert witnesses, even when uncontradicted by other experts. Gregory v. Texas Employers Ins. Ass'n, 530 S.W.2d 105, 107 (Tex. 1975). Jurors are the sole judge of the credibility of witnesses and the weight proper to be assigned their testimony. Aided by their own knowledge and experience of human affairs, they may choose to believe one witness and disbelieve another, or discount and credit testimony for reasons indicated in the body of evidence. Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 834 (Tex. App.--Austin 1992, writ denied). Expert opinion does not deprive jurors of their discretion in that regard. See Broussard v. Moon, 431 S.W.2d 534, 537 (Tex. 1968); Williams v. Lemens, 609 S.W.2d 596, 600 (Tex. Civ. App.--Austin 1980, no writ).

We cannot find the jury answers regarding damages clearly demonstrate bias or that they shock the conscience. We therefore cannot hold the answers are so against the great weight and preponderance of the evidence as to be manifestly unjust. We overrule point of error three.

For the reasons given, we affirm the trial-court judgment.

 

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: September 18, 1996

Do Not Publish

1. Larry Richard Morgan, Sylvia's husband, perfected an appeal, but brings no points of error and does not complain of the judgment rendered against him.

2. See Tex. Transp. Code Ann. 545.151(a), 545.152 (West 1996) (operator of vehicle at intersection shall obey traffic control device and yield right of way).

3. Morgan's requests for damages were as follows: $25,285 past medical expenses; $31,000 future medical expenses; $4,896 past lost wages; $389,400 future lost wages; $20,000 past pain and suffering; and $100,000 future pain and suffering.

to be manifestly unjust because they demonstrate bias or because the findings shock the conscience. See Powers & Ratliff, 69 Tex. L. Rev. at 535-36; see also Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988).

The jury found the following sums reasonably necessary to compensate Morgan for her injuries: physical pain and mental anguish $1,500; physical impairment $5,000; and $3,50