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Mayorga v. Casa Elena Mexican Restaurants12/21/1995
This appeal is from a jury verdict in favor of appellant, Maria Reina Mayorga ("Mayorga"), in her suit against her former employer, Casa Elena Mexican Restaurants, Inc. ("Casa Elena"), for damages sustained in a work-related injury. The jury awarded a total of $4,100 in damages: $3,500 for past medical expenses; $500 for loss of earning capacity in the past; and $100 for transportation expenses in the past. On appeal, Mayorga brings forty-one points of error challenging the factual and legal sufficiency of the evidence supporting the jury's findings on damages. We reverse and remand.
Casa Elena failed to file a brief in this appeal. Therefore, we may accept as true the facts alleged by Mayorga in her brief. TEX. R. APP. P. 74(f); Navistar Internat'l Corp. v. Valles, 740 S.W.2d 4, 6 (Tex. App. -- El Paso 1987, no writ).
On September 9, 1990, Mayorga was working in the kitchen of the Casa Elena Mexican Restaurant on FM 1960 in Houston. The kitchen was overheated, excessively humid and poorly ventilated. There was an argument between Mayorga and another employee, Marina Rivera. The restaurant manager, Rafael Rivas, came into the kitchen and ordered Mayorga to work at removing the hot plates from the oven. He shouted at Mayorga, threatened to fire her, and used offensive language. She wanted to leave because she did not feel well, but Rivas told her if she left, she should not come back. Mayorga resumed working for a short period of time, then fainted and fell against a rack, injuring her neck, left shoulder, and left arm. An ambulance was called and Mayorga was still unconscious when it arrived at the restaurant. Mayorga was taken to the emergency room for treatment and remained hospitalized for two nights. After her release, she continued medical treatment through the time of trial. At the time of Mayorga's injury, Casa Elena was a nonsubscriber to the Texas Workers' Compensation System.
In points of error one through seventeen, Mayorga challenges the legal sufficiency of the evidence supporting the jury's answers to the questions on damages. To evaluate these points, we must review the record to determine if Mayorga's damages were proved as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Because personal injury damages are not capable of measurement by a specific standard, however, these damages are "uniquely within the province of the trier of fact." Southwestern Bell Tel. Co. v. Wilson, 768 S.W.2d 755, 763 (Tex. App. -- Corpus Christi 1988, writ denied). Amounts awarded for physical pain, mental anguish, and future disability are necessarily speculative and are matters for the trier of fact. Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281-82 (Tex. App.- -Houston [1st Dist.] 1991, writ denied); Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 495 (Tex. App. -- Houston [14th Dist.] 1989, no writ). Thus, we may not reverse and render on Mayorga's legal insufficiency points because we are not permitted to furnish an amount for damages and thereby substitute our findings for those of the jury. Sansom v. Pizza Hut of East Texas, Inc., 617 S.W.2d 288, 290 (Tex. Civ. App. -- Tyler 1981, no writ). As she is entitled only to remand for a new trial if her points are sustained, we overrule Mayorga's points of error one through seventeen and consider instead her factual sufficiency points.
When reviewing the adequacy of the damages awarded, we review the entire record to determine whether the jury's negative finding is against the great weight and preponderance of the evidence. We consider all the evidence, both favorable and contrary to the verdict, and reverse and remand for a new trial only if the verdict is so against the great weight
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