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Smith v. Southwestern Bell Telephone Company3/13/2003
Ramona Smith sued Southwestern Bell Telephone Company and Steven T. Miller for damages she allegedly suffered as a result of an automobile accident. The trial court granted Southwestern Bell summary judgment on Smith's claims against it and granted Miller a directed verdict on Smith's claims against him. Smith challenges both of these rulings on appeal. Because we conclude that the directed verdict for Miller was proper, we will affirm the trial court's judgment without reaching Smith's complaints regarding the summary judgment for Southwestern Bell.
Smith and Miller were involved in a four-vehicle car accident on August 28, 1997. Miller was driving a Southwestern Bell truck and was on his way to work. He hit Smith from behind and admitted responsibility for the accident. After the accident, Smith was shaken up, but did not appear to be injured, and her car sustained only minor damage. No one else involved in the accident claimed to be injured in any way, and there was very little damage to any of the other vehicles. An ambulance and paramedics went to the scene of the accident. The paramedics and Miller encouraged Smith to go to the hospital, but she declined.
Several hours later, Smith went to the emergency room, complaining of a headache and neck and upper back pain. Smith also complained of muscle spasms and pain that "kind of like went everywhere." Smith received several tests and x-rays in the emergency room, the results of which were normal. The emergency room doctor diagnosed Smith as having acute cervical strain, prescribed a week's supply of Darvocet and Flexeril, and referred her to the on-call orthopedist. Her condition at discharge was listed as "good." Eventually, however, Smith sought damages from appellees for neck and back pain, numbness in her arms and legs, migraines, depression, difficulty sleeping, anxiety attacks, shortness of breath, stiffness that began in February or March 1998, abdominal pain that began in mid-1998 or 1999, blurred vision that began in late 1999 or early 2000, a blackout that allegedly occurred in March 2001, and tooth loss due to severe tooth decay. At trial, nearly four years after the accident, Smith described herself as "currently disabled" and testified that she had not been able to work since the accident because of her injuries.
Before trial, the trial court granted Southwestern Bell summary judgment on the ground that Miller was not acting in the course and scope of his employment at the time of the accident. The trial went forward against Miller alone. After Smith rested, the trial court granted Miller's oral motion for a directed verdict on the grounds that Smith had failed to present any evidence that her alleged damages were caused by the accident and that she had failed to present any evidence that most of her medical expenses were reasonable and necessary.
In her first issue, Smith complains that the trial court erred in granting Miller a directed verdict because Smith presented some evidence at trial that she experienced compensable damages as a result of the accident.
A directed verdict is proper only under limited circumstances: (1) the evidence conclusively establishes the right of the movant to judgment or negates the right of the opponent; or (2) the evidence is insufficient to raise a fact issue that must be established before the opponent is entitled to judgment. Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Boswell v. Farm & Home Sav. Ass'n, 894 S.W.2d 761, 768 (Tex. App.--Fort Worth 1994, writ denied); see also TEX. R. CIV. P. 268. In reviewing a directed verdict, we must view the evidence in the light most favorable to the party against whom
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