CITY OF BEAUMONT v. GALLIEN (1997)

OPINION

This appeal results from entry of judgment based upon jury verdict in the 172nd District Court in and for Jefferson County, Texas, Honorable Donald J. Floyd, presiding.   The jury was charged with only one question relating to damages suffered by appellee, Gwen Lewis Gallien.   Appellants, City of Beaumont and Officer Roberto Cruz Flores, stipulated liability and did not dispute that Gwen Gallien was injured as a result of the automobile accident on April 30, 1991.   Appellants further advise the jury that it was not disputed that Gwen Gallien should be entitled to compensation to help her diagnose her problem and get the initial problem treated.   In this appeal, appellants only challenge the amount of the jury award and whether judgment is proper against Officer Roberto Flores in view of § 101.106 of the Texas Civil Practice and Remedies Code.

FACTUAL NATURE OF THE CASE

On April 30, 1991, Gwen Gallien was stopped at a stop sign in the City of Beaumont.   When she began to move forward in her Chevy Blazer, a vehicle operated by appellant Flores came through the intersection with no siren or lights flashing, striking appellee's vehicle and causing same to spin around.   Appellee's vehicle finally came to rest in a nearby yard.   An ambulance was summoned to the scene and appellee was transported to a local hospital.   Appellee received a cut to her head which required several stitches.

Appellants have never contended that appellee sustained no injury.   Their sole contention is that the nature and extent of the damages sustained by appellee does not justify the $75,000 award made by the jury.

POINT OF ERROR FOURTEEN

 In point of error fourteen, appellants contend that the trial court erred in entering judgment against appellant Roberto Flores as § 101.106 of the Texas Civil Practice and Remedies Code allows entry of judgment against the City of Beaumont only.

The express language of Tex. Civ. Prac. & Rem.Code Ann. § 101.106 (Vernon 1997) provides:

101.106 Employees Not Liable After Settlement or Judgment

A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.

Appellee contends that since appellant Roberto Cruz Flores stipulated to negligence and did not raise the issue of § 101.106 as an affirmative defense at trial, appellant Flores has now waived his challenge for immunity.   Appellee cites Davis v. City of San Antonio, 752 S.W.2d 518 (Tex.1988) for the proposition that governmental immunity is an affirmative defense which may be waived.   We do not disagree with this general statement by our highest court.   However, we must look further to the case of Thomas v. Oldham, 895 S.W.2d 352 (Tex.1995) to determine the true effect of § 101.106. In Thomas, the court held that a judgment in an action against a governmental unit under the tort claims act bars the simultaneous rendition of judgment against the employee whose actions gave rise to the claim.  Id. at 357.¹

 We disagree with appellee that appellant Flores may not attack the rendition of judgment on appeal without having preserved such complaint at trial court level.   Until judgment was rendered against the City of Beaumont, Flores had no statutory basis to assert the bar provided by § 101.106. We believe the legislative intent in adopting § 101.106 was to provide employees such as Officer Flores with immunity exceeding the technical failure to raise the defense prior to judgment.   Appellants' point of error fourteen is sustained.   That portion of the judgment regarding appellant Flores is reversed, and judgment is rendered that appellee take nothing from appellant Flores.

The remainder of this opinion does not meet standards for publication pursuant to Tex.R.App. P. 90(c) and thus is ordered not published.

We affirm the trial court's judgment in part;  and reverse and render in part.

POINTS OF ERROR

Appellants bring fifteen points of error which we choose to combine and categorize where necessary.   Appellants' point of error one through five basically challenge the trial court's overruling of appellants' motion for judgment non obstante veredicto.   In each of these five challenges, appellants assert that there is no evidence to support causal link between accident and personal injury;  to support finding of medical expenses in the past;  to support findings as to future medical expenses;  to support findings as to physical impairment in the past;  and to support findings as to physical impairment in the future.

Appellants' points of error six through thirteen address the legal and factual sufficiency of the evidence.

Point of error fourteen challenges the trial court's judgment against appellant Roberto Flores, while point of error fifteen challenges the trial court's failure to remit the jury award as being excessive.

THE EVIDENCE

Bearing in mind that appellants make no challenge as to liability, we review the evidence presented to the court and the jury.   Numerous witnesses were called by appellee to testify at trial.   Dr. Hubert Monroe, Director of Personnel for the Beaumont Independent School District, testified that appellee was hired during the 1986-87 year as a teacher's aide.   Further, that workers such as appellee worked 180 days per year from mid-August through the end of May. According to school district policies, salaries were decided in July or August for the coming year and letters were sent out concerning employment in May for the coming year.   Mrs. Gallien worked for the Beaumont Independent School District as a teacher's aide beginning in 1986 and continuing through the 1990-91 school year.   Dr. Monroe further testified that appellee's salary for 1991-92 would be $9,800 and for 1992-93 would have been $10,200.   Plaintiff's Exhibit 1 accurately reflects appellee's absence from the date of the accident through June 1, 1991.   Dr. Monroe identified Plaintiff's Exhibit 2 as a letter from appellee's doctor requesting a change in her vocation due to medical reasons and following the receipt of another letter from the doctor dated August 30, 1991, it became necessary for appellee to request extended sick leave.   Appellee submitted a request for extended sick leave on September 4, 1991, and provided a signed physician's statement verifying disability supporting her request.   Appellee did not work enough days during the years 1991 or 1992 to get credit for a year of service and was significantly in excess of the 180 days allowed on leave, thus it became necessary to fill appellee's position with some other person in January 1993.   Dr. Monroe identified Plaintiff's Exhibit 5 as the letter sent to her concerning her absences and the filling of her position with another employee.

Mary Jackson, appellee's mother, testified that appellee worked at K-Mart while she was in high school and always continued to work after graduation.   Prior to the accident appellee was in good health.   Ms. Jackson testified that appellee loved her job with the school district and that appellee had not received medical treatment before April 1991 for any kind of problem with appellee's head.   On the date of the accident, Ms. Jackson went to the hospital and saw appellee in the examining room.   Ms. Jackson testified that appellee was in sort of a daze and had blood on her head and was complaining of her head hurting.   Following hospitalization, Ms. Jackson would see appellee every day and appellee continued to complain of her head hurting, dizzy spells, blackouts and passing out on the floor.   Ms. Jackson testified that appellee had never had a problem such as this before the accident but since the accident appellee had continuing headaches, dizzy spells and trembling lips.   Ms. Jackson also testified that appellee appeared to be in pain having headaches which sometimes last two or three days.   Ms. Jackson's description of appellee prior to the accident was that of a very active person.

Melissa King testified as a witness to the subject accident.   Ms. King testified that she was stopped at the stop sign opposite appellee and when appellee started up, all of a sudden a police car came out of nowhere and hit her going fast.   The police car did not appear to slow down and had no lights flashing or siren sounding.   The force of the impact spun appellee's Blazer around many times and knocked her into a yard.   Ms. King described the collision as forceful and violent enough to spin the Blazer around and the police car around so that it struck Ms. King's vehicle.   Ms. King described appellee's Blazer as pretty messed up.   Further, Ms. King testified that when the ambulance arrived the attendants were very careful in removing appellee from her automobile.   Appellee had a neck brace on and a board under her back and a bandage on her head.

Greg Jackson, appellee's brother, testified that before April 30, 1991, he saw appellee regularly, that she worked regularly and liked her job at the Beaumont Independent School District.   Mr. Jackson testified that before the accident, in April 1991, appellee was a very outgoing active person who did a lot of work on her house and who cleaned her mother's house.   Mr. Jackson testified that he and appellee frequently went bowling together.   Prior to the accident appellee did whatever she wanted to do and was a healthy person.   Mr. Jackson testified that following the accident, he personally observed appellee black out and fall to the floor.   Mr. Jackson testified that since the accident appellee had problems with headaches which hurt so bad that she would go and lay down and appellee had never had a problem such as this prior to the accident.

Gary Gallien, husband of appellee, testified that he had observed incidents of appellee having blackouts such as those described by Mr. Jackson.   Mr. Gallien testified that before the accident Gwen worked at the Beaumont Independent School District and loved her job working with the kids there.   Mr. Gallien testified that prior to the accident he and appellee worked on their house doing things such as laying floor tile, hanging paneling, taking care of flower beds, shrubbery, and painting.   Mr. Gallien described appellee as a very outgoing person in good physical condition prior to the accident.   He testified that appellee never had a problem with headaches prior to the accident.   Mr. Gallien testified that appellee did not appear to be getting better, that she complains of pain and that she had just not been herself since the accident.

Appellee, Gwen Gallien testified extensively regarding her life and health, both prior to and following the accident, in April 1991.   Appellee described the accident in detail, testifying that she was slumped over the steering wheel and felt a hard throbbing in her head.   When she reached up and touched her head her hand was full of blood and there was blood all over the sheet which she had on her driver's seat.   Appellee testified that everything was out of focus and blurry.   She testified that her head was hurting when she was at the hospital.   Further, periodically she would have to return to the emergency room due to pain in her head.   Appellee also testified as to her inability to fulfill her work duties due to the pain which she was suffering.   Appellee also testified that she was involved in another accident in November 1991, where her chest hit the steering wheel.   She testified that her son's head hit the glass and not her own.   She testified that she did not tell the doctor her head hit the glass and that her problems were the same before this November accident as they were afterwards.   Appellee testified that the November accident had nothing to do with the physical problems resulting from the accident of April 1991.

Medical and employment records were introduced during trial.   Plaintiff's Exhibit 2 is a letter from appellee's treating physician, Dr. Haufrect, requesting a change in appellee's vocation dated August 7, 1991.   The letter states that due to medical reasons the doctor concurs with her request to change her current job title to perhaps a clerical position.   Plaintiff's Exhibit 4 is appellee's request for extended sick leave dated September 4, 1991, approved by Dr. Monroe.   Plaintiff's Exhibit 5 is a letter from Dr. Monroe to appellee dated January 7, 1993, reflecting her absence from her employment as 261 days as of January 7, 1993, and that she had not yet returned to work.   The letter further reflects that until appellee is released by her treating physician to return to full time duty, appellee's position must be filled by another person.   Plaintiff's Exhibit 6 is the medical records of Dr. Dale Haufrect.   These records show consistent and regular medical treatment by the doctor for post-concussive syndrome, post-concussive headaches, forgetfulness and insomnia as a result of the accident of April 30, 1991.   In a narrative, reflected as Plaintiff's Exhibit 6A, Dr. Haufrect states that certain activities may precipitate an epileptic convulsive seizure since a concussion patient or post-concussion patient may suffer such an epileptic convulsion weeks, months, or even several years after an injury.   Dr. Haufrect's records show reasonable and customary charges for the care and treatment provided in May 1991, June 1991, July 1991, August 1991, September 1991, October 1991, December 1991 and March 1992.   Dr. Haufrect's records repeatedly diagnosed post-trauma headaches due to the accident of April 30, 1991.

Richard Wright, a licensed physical therapy assistant at St. Elizabeth Hospital identified the prescription for physical therapy given appellee by Dr. Haufrect on June 26, 1991.   The prescription requested an initial assessment for therapy for post-traumatic headaches.

POINTS OF ERROR ONE THROUGH FIVE

These points of error are directed to the trial court's overruling of appellants' Motion for Judgment Non Obstante Veredicto (j.n.o.v.).   J.N.O.V. is proper only if there is no evidence supporting the jury's findings.   Exxon Corp. v. Quinn, 726 S.W.2d 17 (Tex.1987).   A Jury's answer to a special issue or question may be disregarded only when it has no support in the evidence or when it is immaterial.  Carey v. American General Fire and Casualty Company, 827 S.W.2d 631 (Tex.App.-Beaumont 1992, writ denied).   We must regard the evidence in the light most favorable to the verdict and all evidence and inferences contrary to the verdict must be disregarded.   If any probative evidence supports the verdict, the no evidence point must be overruled.  Navarette v. Temple Independent School District, 706 S.W.2d 308 (Tex.1986);  Wal-Mart Stores, Inc. v. Berry, 833 S.W.2d 587 (Tex.App.-Texarkana 1992, writ denied).

Appellant admits by brief that there is some evidence of causation of some damage.   Appellant admits that appellee testified that she was possibly knocked unconscious in the collision and was bleeding from her scalp which required stitches.   Because of appellants' admission and recognition that some evidence supports causation of some damage, coupled with our review of the evidentiary record in this case, we overrule appellants' points of error one through five.

POINTS OF ERROR SIX THROUGH THIRTEEN

Appellants' points of error six through thirteen focus primarily on the factual insufficiency of the evidence, though coupled with claims of legally insufficient evidence.   The underlying thrust of appellants' contentions in these points of error is that appellee failed to establish the necessary causal nexus to entitle appellee to recovery of damages, citing Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex.1984).   Appellants' position that though appellants have stipulated to a causal nexus between appellants' conduct and the event sued upon by appellee, nevertheless, the evidence fails to show or is insufficient to show a causal nexus between the event, i.e., the accident, and appellee's injuries.   It is appellants' contention that expert medical testimony was required to establish the nature of the injuries suffered by appellee.   Appellants rely on Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex.1995);  Lenger v. Physician's General Hospital, Inc., 455 S.W.2d 703, 706 (Tex.1970).   Appellants contend that the testimony of appellee's relatives and other witnesses, coupled with the admission of all medical records, standing alone, is insufficient for a jury to determine that appellee's injuries resulted, in reasonable probability, from the accident.   Appellants say that expert medical testimony was required.

At trial, the trial court admitted almost all of the medical records of appellee's treating physician.   These records contained narratives and letters written by the treating physician, numerous billing and disability forms which clearly document the symptoms appearing after the accident of April 30, 1991, and the diagnosis of post-concussion syndrome, forgetfulness and headaches.

Lay testimony is adequate to prove causation in those cases where general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition;  and where lay testimony establishes a sequence of events which provides a strong, logically traceable connection between the event and the condition, it is sufficient proof of causation.   See Morgan, 675 S.W.2d at 733.   In Morgan, plaintiff alleged damages from being exposed to fumes emanating from a typesetting machine.   Our Texas Supreme Court noted that there was no expert medical testimony offered but held that the lay testimony presented was sufficient to establish causation.  Id. The court pointed out that there was evidence that Morgan had always been in good health, and after being exposed to fumes emanating from the machine, Morgan experienced problems with breathing and swelling and developed symptoms such as watering of the eyes, blurred vision, headaches and swelling of the breathing passages.   The court held that this evidence established a sequence of events which the trier of fact may properly infer, without the aid of expert medical testimony, that the release of chemical fumes from the type setting machine caused Morgan to suffer injury.  Id.

The evidence in the record before us, both from medical evidence provided through records of the treating physician and the testimony of appellee and other lay witnesses, describe in detail the events from which the jury could properly infer that the automobile accident caused Gwen Gallien to suffer injuries.   The evidence is clear that appellee sustained a head injury in the accident of April 30, 1991.   There is abundant evidence that appellee continued to suffer pains in her head from the date of the accident through trial.   In appellants' points of error six through thirteen, appellants contest the factual sufficiency of the evidence as same pertains to the amount of the jury award;  damages, past and future;  necessity of medical care resulting from the accident;  past and future medical care;  lost earning capacity, past and future;  physical impairment, past and future;  mental anguish, past and future.   Point of error thirteen contends that the trial court erred in overruling appellants' motion for new trial because the evidence was legally and factually insufficient as to physical pain, both past and future.

The trial court submitted in broad form only one question:

 QUESTION  1 

What sum of money, if paid now in cash, would fairly and reasonably compensate Gwen Gallien for her injuries, if any, that resulted from the occurrence in question?

Consider the elements of damages listed below and none other.   Consider each element separately.   Do not include damages for one element in any other element.   Do not include interest on any amount of damages you find.

Element a) Physical Pain

Element b) Mental Anguish

Element c) Medical Care

Element d) Loss of earning capacity

Element e) Physical impairment

Answer in dollars and cents, if any, that:

Were sustained in the past    $ 32,000

In reasonable probability

will be sustained in the future   $ 43,000

Appellants make no complaint in this appeal as to the manner in which the trial court submitted the damage question nor did appellants submit to the trial court any proposed question.   Broad form submission of damage questions is the preferred method of submission.  Island Recreational Development Corporation v. Republic of Texas Savings Association, 710 S.W.2d 551 (Tex.1986);  Johnson v. King, 821 S.W.2d 425 (Tex.App.-Fort Worth 1991, no writ).   We note, in Johnson, when the damage issue is submitted in broad form, it is impossible to determine exactly how much the jury awarded for which element of damage.  Id. at 429.   When the total actual damage is in one question and the jurors are instructed to consider particular elements, an answer by the jury as to each element is not required to support the verdict.   Greater Houston Transportation v. Zrubeck, 850 S.W.2d 579 (Tex.App.-Corpus Christi 1993, writ denied);  Kulms v. Jenkins, 557 S.W.2d 149 (Tex.Civ.App.-Amarillo 1977, writ ref'd n.r.e.).   There is no set amount of the jury award which can be determined to be attributable to each element.   See Kansas City Southern Railway Co. v. Carter, 778 S.W.2d 911 (Tex.App.-Texarkana 1989, writ denied).

In determining factual insufficiency points of error, it is not the function of this Court to reweigh the evidence or re-evaluate the credibility of witnesses.   See State Farm Fire & Casualty Company v. Simmons, 857 S.W.2d 126 (Tex.App.-Beaumont 1993, writ denied).   The court in American Motorists Insurance Company v. Volentine, 867 S.W.2d 170, 174 (Tex.App.-Beaumont 1993, no writ) noted:

We should also note that it is the sole province of the trier of fact who has the opportunity to observe the demeanor of the witnesses on the stand, to judge their credibility, to weigh their given testimony, to resolve conflicts in the testimony of one witness with the testimony of another witness, and to believe part of a witness' testimony and disregard other portions thereof.

In Volentine, this Court had before it a situation where the treating physicians did not testify at trial, the same situation as the present case.   We noted that the medical records contained diagnosis and continuing complaints.   However, in Volentine, an expert witness testified on behalf of the appellant.   We held that opinion testimony does not establish any material fact as a matter of law and is never binding on the trier of fact.   Id.

In the present case, it is apparent that appellants disagree with the jury's verdict primarily as to the amount of money awarded.   We believe there is ample evidence to support the award of damages made in favor of appellee.   To establish a claim for excessive damages, appellants must establish that the jury's evaluation of the damages suffered is erroneous.   See Sample v. Freeman, 873 S.W.2d 470 (Tex.App.-Beaumont 1994, writ denied).   Appellants have failed to do so.   Appellants' points of error six through thirteen are overruled.

POINT OF ERROR FIFTEEN

Here, appellants contend that the trial court erred in failing to remit the jury's award of $32,000 and $43,000 for past and future damages as such sums are excessive.   Appellants request that this Court order remittitur amounts to a request that this Court retry the case on its facts.   There is ample evidence in the record before this Court to support the amount of damages awarded by the jury.   Appellee suffered a head injury on April 30, 1991, which continued to be problematic up through trial.   Appellants have presented no basis for this Court to go behind the jury's award.   We overrule point of error fifteen.

AFFIRMED IN PART;  REVERSED AND RENDERED IN PART.

FOOTNOTES

1.   Even if a judgment against appellant Flores were somehow sustainable, the language of § 101.106 clearly indicates that appellee would be precluded from initiating “any action” in an attempt to execute on said judgment.

WALKER, Chief Justice.