WEINGARTENS v. PRICE

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Docket Number

No. 407.

Attorney(S)

Kenneth Tekell, Pomeroy Tekell, Houston, for appellant. Jack J. Turk, Turk Farmer, Houston, for appellee.

Judges

SAM D. JOHNSON, Justice.

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Smart Summary

Factual and Procedural Background

This case involves a suit for personal injuries brought by Rosie Price, joined by her husband James Price, against Weingarten's, Inc. Mrs. Price alleged that while shopping at a Weingarten's supermarket, she tripped and fell over an unattended dolly protruding into an aisle, which was negligently left there by the defendant. The plaintiffs sought damages in the amount of $17,500 for medical expenses, physical pain and mental anguish, and loss of services as a wife. Following a jury trial, judgment was entered for the plaintiffs in the amount of $5,000. The defendant, Weingarten's, appealed the judgment to the Court of Civil Appeals of Texas, Houston, Fourteenth District.

Legal Issues Presented

Whether the trial court erred in admitting testimony related to loss of earnings and loss of earning capacity when such damages were not specifically pled by the plaintiffs.
Whether the inclusion of loss of earnings and loss of earning capacity in the damage issue submitted to the jury was proper given the pleadings.

Arguments of the Parties

Appellant's Arguments

The appellant contended that the plaintiffs did not plead loss of earnings or loss of earning capacity, and therefore the trial court erred in admitting testimony and submitting these elements to the jury.
The appellant requested reversal and remand of the cause based on this alleged error.

Appellee's Arguments

The appellee argued that the pleadings were sufficient to encompass damages for loss of earnings and loss of earning capacity.
Appellee relied on two cases—Clanahan Construction Company v. Mills and Cowden Cab Company v. Thomas—to support the contention that such damages could be included without specific pleadings.
Appellee noted that no special exception to the pleadings was made by the defendant, and that no trial amendment was requested or granted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Clanahan Construction Company v. Mills, 426 S.W.2d 265 (Tex.Civ.App.)	Evidence of future earning capacity admissible without further pleadings where injuries are specifically set out and trial amendment permitted.	Court noted appellee's reliance but distinguished that a trial amendment was permitted in that case and the injuries were specifically set out, which was not the case here.
Cowden Cab Company v. Thomas, 425 S.W.2d 886 (Tex.Civ.App.)	Pleadings alleging damages for pain and suffering and mental anguish sufficient to encompass damages for past earnings and future earning capacity.	Court noted that a trial amendment was permitted after evidence closed in that case, which was not done here, and that the evidence was elicited by the defendant on cross-examination.
Matthews v. General Accident Fire Life Assur. Corp., 343 S.W.2d 251 (Tex. 1961)	Damages not tried by consent must be specifically pled.	Applied to conclude that loss of earnings and earning capacity were not tried by consent in this case.
Dallas Railway Terminal Co. v. Garrison, 30 S.W.2d 1108; rev'd on other grounds, 45 S.W.2d 183 (Tex.Com.App.)	General allegation of damages permits proof of damages naturally and proximately resulting from the injury.	Distinguished because plaintiffs here particularized damages, limiting recovery to those elements specifically alleged.
Southern Pac. Co. v. Martin, 83 S.W. 675 (Tex. 1904)	When damages are particularized, all intended damages must be alleged.	Supported the principle that plaintiffs are limited to the damages specifically pleaded.
Knight v. Caloudas, 409 S.W.2d 904 (Tex.Civ.App.)	Where negligence is pled specifically, recovery is limited to grounds specifically pleaded.	Used to analogize the limitation on damages when specifically pled.
Smelcher v. Ingram, 294 S.W.2d 180 (Tex.Civ.App.)	Loss of earnings must be supported by pleadings; inclusion in damage issue without pleading is error.	Applied to hold that loss of earnings without pleading support is reversible error.
Dallas Railway Terminal Co. v. Van Gilder, 301 S.W.2d 724 (Tex.Civ.App.)	Future pain and suffering must be pled to be included in damage issue.	Supported the requirement of pleading for inclusion of damage elements.
Beaumont City Lines v. Mahoney, 143 S.W.2d 982 (Tex.Civ.App.)	Damage issue for inability to perform household duties not supported by pleadings is reversible error.	Reinforced the need for specific pleading of special damages.
Beaumont City Lines, Inc. v. Williams, 221 S.W.2d 560 (Tex.Civ.App.)	Distinction between loss of earnings and loss of earning capacity; cannot recover for both.	Clarified the nature of damages and limits on recovery.
Texas P. Ry. Co. v. Bowlin, 32 S.W. 918 (Tex.Civ.App.)	Loss of earnings and earning capacity are special damages requiring specific pleading.	Supported the court's conclusion on the nature of these damages.

Court's Reasoning and Analysis

The court analyzed the plaintiffs' petition and found that the damages were specifically itemized as medical expenses, physical pain and mental anguish, and loss of services as a wife. There was no general allegation of damages or any allegation of loss of earnings or earning capacity. The court emphasized the legal principle that special damages, such as loss of earnings and earning capacity, must be specifically pleaded and cannot be implied from other alleged damages. The court distinguished prior cases cited by appellee, noting that those cases involved either trial amendments or general allegations of damages, neither of which applied here. The court further held that no trial amendment was requested or granted and that the damages for loss of earnings and earning capacity were not tried by consent. Based on these facts and legal principles, the court concluded that the trial court erred in admitting testimony and submitting these damage elements to the jury.

Holding and Implications

The court sustained the appellant's points of error and reversed and remanded the judgment of the trial court.

The direct effect of this decision is that the judgment awarding damages including loss of earnings and earning capacity is set aside and the case is sent back for further proceedings consistent with the court's opinion. No new precedent was created beyond reaffirming the established principle that special damages must be specifically pleaded and that particularized damages limit the scope of proof.

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WEINGARTENS, INC., Appellant, v. James PRICE et ux., Appellee.

SAM D. JOHNSON, Justice.

Suit for personal injuries alleged to be in the sum of $17,500 brought by Rosie Price, joined by her husband, James Price, against Weingarten's, Inc. Based on answers to special issues found by the jury judgment was entered for the plaintiffs in the sum of $5,000. Appellant Weingartens duly effects appeal to this Court.

In their petition plaintiffs alleged that Mrs. Price had gone to the Weingartens supermarket to purchase groceries; that while shopping inside the store she tripped and fell over the end of an unattended dolly which was protruding into the aisle way; and that Weingartens had negligently left the dolly in the aisle was proximately causing the injuries made the basis of the suit. The petition then continued as follows:

"* * * As a result of such negligence, your Plaintiff, Rosie Price, has been damaged in the "just and reasonable sum of SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($17,500.00) for which sum your Plaintiff, James Price here new sues in her behalf; such damages to your Plaintiffs, consisting of damages for reasonable and necessary medical expenses incurred and to be incurred in the future, past and future physical pain and mental anguish, and loss of services as a wife.

"WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Defendant be cited to appear and answer herein, and that upon final trial hereof, Plaintiff James Price have judgment against the Defendant in the just and reasonable sum of SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($17,500.00), as to and for injuries

sustained by his wife, Rosie Price; that they have interest on the judgments at the legal rate; that they have all costs of Court herein expended, and that they have such other and further relief, both general and special, at law and in equity, to which they may show themselves to be justly entitled, and in duty bound will ever pray."

In the trial before the jury Mrs. Price testified that prior to her fall she had taken in sewing. She was then asked how much income per month she made from such sewing. Specific objection was then interposed by counsel for the defendant because loss of income had not been pled by the plaintiffs. The court overruled the objection and the witness proceeded to testify that she earned $20 to $25 per month before the accident and that after the accident she had been unable to earn anything.

The court's charge to the jury contained a single damage issue consisting of six elements. The third and fourth of these were as follows:

"c. Loss of earnings in the past.

"d. Loss of earning capacity which, in reasonable probability, she will sustain in the future."

Specific objection was made by the defendant to the inclusion of these two elements in the court's charge for the reason that loss of income and loss of earning capacity had not been pled. This objection was likewise overruled. The above two elements were included in the damage issue submitted to the jury, and the jury's finding in answer to such issue ($5,000) therefore included consideration of loss of earnings and loss of earning capacity in the future.

Appellant here presents only two points of error. There points are directed to the admission of testimony and the inclusion in the damage issue of the elements of loss of earnings and loss of earning capacity. Weingartens, the appellant, contends here, as it did in the trial court, that there were no pleadings to support the admission of the testimony or the submission of these elements in the damage issue. Appellants contend that the trial court therefore erred and pray that the cause be reversed and remanded. We conclude that appellant's points of error must be sustained.

In response appellee contends that her quoted pleadings are sufficient to encompass damages for loss of earnings and loss of earning capacity in the future. Appellee relies upon two cases, Clanahan Construction Company v. Mills, 426 S.W.2d 265 (Tex.Civ.App., writ ref., n.r.e.); and Cowden Cab Company v. Thomas, 425 S.W.2d 886 (Tex.Civ.App., writ ref., n.r.e.). Clanahan, supra, was a general injury case where in the words of the appellate court, 'the injuries are specifically set out' and damages were alleged in a particular sum. The court's opinion stated that evidence of future earning capacity was admissible without further pleadings, though it is to be noted that the trial court had permitted a trial amendment which encompassed future earning capacity. It is also to be noted that the court's opinion does not quote or shed light upon the injuries which were said to be 'specifically set out.'

In the second case, Cowden Cab Company, supra, plaintiffs' petition alleged damages in a specific sum for pain and suffering and mental anguish as a consequence of injuries, together with a prayer 'for such other relief, special or general * * *.' The appellate court's opinion held that such pleading was sufficient to encompass damages for past earnings and decrease in future earning capacity. It is to be noted that the trial court in the Cowden case, had, however, after the evidence was closed, permitted a trial amendment which encompassed damages for loss of past earnings, and decrease in future earning capacity. The appellate court's opinion stated that the trial amendment was not necessary and that the pleadings were sufficient without it. The court noted, however, that the complained of evidence was elicited by the defendant (the complaining party on appeal) on cross-examination and that no objection was urged upon further elaboration by plaintiff's own counsel later in the trial.

At the outset in the case at bar it is to be noted that no special exception to the plaintiff's quoted pleading was made by the defendant. It is also to be noted that the plaintiffs made no request at any time for permission to file a trial amendment and none was made. Lastly, we believe it quite clear from the record that the questioned areas of loss of earnings and loss of earning capacity were not tried by consent. See Matthews v. General Accident Fire Life Assur. Corp., 161 Tex. 622, 343 S.W.2d 251 (1961).

Plaintiff's quoted pleading clearly shows that Mrs. Price alleged her damages to be in the sum of $17,500, 'consisting of damages for reasonable and necessary medical expenses incurred and to be incurred in the future, past and future physical pain and mental anguish, and loss of services as a wife.' (Emphasis supplied). An examination of this vital portion of plaintiff's petition makes it quite clear that there is no general allegation of damages. Plaintiff's petition contains no general allegation of permanent injuries which might permit the admission of particular injuries naturally and proximately resulting therefrom. Dallas Railway Terminal Co. v. Garrison, 30 S.W.2d 1108, (Tex.Civ.App.) rev'd on other grounds, 45 S.W.2d 183 (Tex.Com.App.). The sum of damages are stated 'consisting of' three named elements. Plaintiffs then enumerate and particularize these three elements which are (1) past and future medical expenses, (2) past and future physical pain and mental anguish, and (3) loss of services as a wife.

We believe it to be a rule of general application that if a plaintiff makes a general allegation of damages it will suffice as a basis for proof of those damages which naturally and necessarily result therefrom, for the law implies such damages. But if, as here, plaintiffs choose to particularize the injuries arising from a harm or hurt all that it intended to be proven must be alleged. Southern Pac. Co. v. Martin, 98 Tex. 322, 83 S.W. 675 (1904); Missouri, K. T. Ry. Co. of Texas v. Doyal, 142 S.W. 610 (Tex.Civ.App., no writ hist.). Such rule is closely akin to that applicable in negligence cases which provides that where negligence is pled specifically the plaintiff is limited to the grounds specifically pleaded, even though negligence is pled generally. Knight v. Caloudas, 409 S.W.2d 904 (Tex.Civ.App., no writ hist.); Rhodes v. Liberty Welding Works, 391 S.W.2d 796 (Tex.Civ.App., writ ref., n.r.e.); Yanowski v. Ft. Worth Transit Co., 204 S.W.2d 1001 (Tex.Civ.App., writ ref., n.r.e.).

In Smelcher v. Ingram, 294 S.W.2d 180 (Tex.Civ.App., writ ref., n.r.e.), plaintiff's pleadings were silent with respect to loss of earnings and objection was made to testimony relative thereto. The objection was overruled, the testimony was received and such element was included in the damage issue submitted to the jury. The appellate court reversed holding that loss of earnings had no support in plaintiff's pleadings. In Dallas Railway Terminal Co. v. Van Gilder, 301 S.W.2d 724 (Tex.Civ.App., writ ref. n.r.e.), plaintiff's pleading did not allege future pain and suffering and the court held that it was error to include these elements in the damage issue. Beaumont City Lines v. Mahoney, 143 S.W.2d 982 (Tex.Civ.App., dismd. agr.), involved personal injuries to a housewife and she and her husband brought suit for damages. Their pleadings contained no allegation relative to loss of capacity to do housework. The court held that a damage issue which permitted the jury to award damages for inability of the housewife to perform her household duties was not supported by the pleadings and reversible error. Beaumont City Lines, Inc. v. Williams, 221 S.W.2d 560 (Tex.Civ.App., writ ref., n.r.e.), was an instance where a husband brought suit for personal injuries sustained by his wife who had performed all of her household duties before the accident but was unable to do so afterward. The court there drew the distinction between loss of earnings and loss of earning capacity stating that '* * * a party may not sue for the loss of one and recovery for the loss of the other. * * *' (At p. 563).

These cases are speaking of items of 'special damage' and emphasizing that in most instances such damages must be specifically pled. Loss of earnings and loss of earning capacity are items of 'special damages.' McCormick, Damages, p. 37; Texas P. Ry. Co. v. Bowlin, 32 S.W. 918 (Tex.Civ.App., err. ref.); Missouri, K. T. Ry. Co. of Texas v. Johnson, 37 S.W. 771 (Tex.Civ.App., no writ hist.); St. Louis Southwestern Ry. Co. of Texas v. Niblack, 53 Tex. Civ. App. 619 [ 53 Tex. Civ. App. 619], 117 S.W. 188, err. ref., and are not implied from the itemization of other dissimilar 'special damages.'

Loss of earnings and loss of earning capacity are without support in the petition of the plaintiff. Appellant's points of error are sustained. The judgment of the trial court is reversed and remanded.