Opinion
No. 07-04-0362-CV
January 20, 2006.
Appeal from the 47th District Court of Potter County, No. 90,718-a, Honorable Brian Poff, Judge.
Panel A: Before REAVIS and CAMPBELL and HANCOCK, JJ.
ON MOTION FOR REHEARING
Remaining convinced that our original disposition is correct, we overrule appellants' motion for rehearing and deny their request for en banc reconsideration with these additional comments.
Citing King v. Skelly, 452 S.W.2d 691 (Tex. 1970), appellants renew their contention that Scott's evidence is legally and factually insufficient to support an award of $150,000 for loss of earning capacity, both past and future. However, King is not controlling here for two reasons. First, King only pertains to that evidence sufficient to prove loss of future earning capacity. See id. at 691-94; Skelly v. King, 443 S.W.2d 953, 957-58 (Tex. 1969) (explaining that a special exception to the pleadings "limited the damage issue to future loss of earning capacity, if any.") Therefore, it does not instruct us regarding the type of evidence required to prove loss of earning capacity in the past.
King did not challenge the trial court's order sustaining the special exception on appeal.
Second, appellants' reliance on King regarding the award for loss of future earning capacity is misplaced. King holds that where a self-employed plaintiff derives his profits from multiple sources, the profits cannot be considered as a true measure of the plaintiff's own personal earning capacity. King, 452 S.W.2d at 694. However, in the present case, Scott's testimony regarding his diminished income the year following the accident was admitted without objection. Appellants' failure to request an instruction to segregate or limit the evidence to specific issues, or to include a similar instruction in the charge, allowed the jury to consider the evidence for all purposes, and any error is waived. See Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997); In re K.S., 76 S.W.3d 36, 40 (Tex.App.-Amarillo 2002, no pet.). See also Tex. R. Civ. P. 274; Tex. R. Evid. 105(a).
Rule 105(a) requiring a request for limiting instruction where evidence is received did not become effective until September 1, 1983 and thus, was not available to the parties when King was decided.
Appellants also contend the evidence supporting the award for loss of future earning capacity relates only to the loss of earning capacity in the past. However, to prove damages for loss of future earning capacity, Scott may introduce evidence of past earnings and his ability to work in light of his injury. See Tagle v. Galvan, 155 S.W.3d 510, 519 (Tex.App.-San Antonio 2004, no pet.); Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21, 35-36 (Tex.App.-Tyler 2003, pet. denied). Furthermore, an award can be based on a composite of factors that may affect a person's capacity to earn a living. E.g., Plainview, 127 S.W.3d at 36; Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d 236, 244 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).
Accordingly, appellants' motion for rehearing is overruled.
CONCURRING OPINION ON MOTION FOR REHEARING
For reasons other than those the Court states, I agree that King v. Skelly is not dispositive of this case. Unlike the plaintiff in King v. Skelly, I believe the evidence here supports a conclusion appellee's earnings from his construction work provided a proper measure of his earning capacity before his injury. I concur in the overruling of appellants' motion for rehearing and denial of their request for en banc reconsideration of our original disposition.