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At a Glance:
Benji, Inc. v. Kames
March 30, 1995
Unpublished Opinion

Benji, Inc. v. Kames

Court of Appeals of Texas,

Houston (1st Dist.).

BENJI, INC., Appellant,


Marnell KAMES, Appellee.

No. 01-94-00528-CV.


Mar. 30, 1995.



*1 This is a slip and fall case. After a bench trial, the court awarded $10,000 to the appellee, Marnell Kames. The appellant, Benji, Inc., raises three points of error on appeal. We affirm.

At the time of her injury, on August 16, 1991, Kames was employed as a waitress at the Landing Strip, a topless club owned by Benji, Inc. Benji is a nonsubscriber to the Texas Workers Compensation Act. Thus, Benji has waived the common-law defenses of contributory negligence, assumption of the risk, or fellow employee negligence. TEX. LAB. CODE § 406.033(a) (Vernon Pamph. 1995).

The evidence, viewed in the light most favorable to the verdict, reflects that Kames went to work at about 7:00 p.m. on August 12, 1991. At about 9:00 p.m., she went to the restroom, where she noticed one of the dancers “washing her private area in the sink.” Kames informed Kevin Thompson, the night manager, that there was water on the floor. Later in the evening, Kames again went to the restroom, where she slipped on a puddle of water. She landed on her back and hit her head on the bathroom stall. She got up, and on her way out of the restroom she saw Thompson and one of the dancers, Kerry Kramer. She told Thompson that she had slipped in the puddle, that she was hurt, and asked him to get the restroom cleaned up. Thompson told her to leave the club.

At trial, Kames sought $5,264 in medical expenses, $900 in lost earning capacity, and $6000 for pain and suffering due to headaches and pain in her back and neck. The trial court rendered judgment in favor of Kames in the amount of $10,000. The trial court entered findings of fact and conclusions of law, and overruled Benji’s motion for new trial.

On appeal, Benji argues that the trial court erred in overruling the motion for new trial because (1) there was no evidence, or insufficient evidence, that Kames’ injuries were caused by the slip and fall; (2) the award of $10,000 in damages was against the great weight of the evidence; and (3) there was no evidence, or insufficient evidence, that Kames’ accident even occurred.

In reviewing a legal sufficiency point of error, we examine only the evidence supporting the finding and disregard all evidence to the contrary. We will sustain the point if the record discloses that evidence of a vital fact is absent or is no more than a scintilla. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex. 1988).

In reviewing the factual sufficiency of the evidence, we examine all of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Third point of error

In its third point of error, Benji challenges the legal and factual sufficiency of the evidence supporting the trial court’s finding that the accident even occurred. Benji argues that Kames’ time cards reflect that she was not working on August 12, 1991, the day she alleges she was injured. Although the time cards were “some evidence” that Kames was not working on Monday, August 12, 1991, they did not prove that Kames did not work that day. In the first place, Kames did not identify the cards as hers, and her signature did not appear on any of the cards.

*2 Even if the time cards were authentic, other evidence contradicted them. Specifically, William Hallberg, the sole shareholder and president of Benji’s, testified that he was present at the club the night of the accident, and that he spoke to Kames that night. This testimony alone was probative evidence that Kames was present at the club. Once the defendant’s sole shareholder admitted that Kames was at the club that day, the trial court could easily conclude that Kames was working that day.

There was also ample evidence in the record to support the trial court’s finding that Kames injured herself at Benji’s club. Kames provided direct testimony concerning the events in question. While Benji may not think her testimony was credible, it was “some evidence” sufficient to uphold the trial court’s conclusion. Moreover, there was some corroborating testimony introduced by Kames. Kerry Kramer testified that she saw Kames come out of the restroom, and heard Kames tell Thompson, the night manager, that she had slipped and hurt herself.

We overrule Benji’s third point of error.

First point of error In its first point of error, Benji argues that there was no evidence or insufficient evidence to show a causal relationship between the accident and Kames’ injuries. Specifically, Benji seems to argue that there was no evidence that the injury treated by Kames’ doctor was caused by Kames’ slip and fall. Again, however, Kames’ testimony alone was “some evidence” to support the trial court’s finding that her injuries were the result of the accident. Kames testified that she was in pain after she fell. In addition, Kramer testified that Kames was crying, and limping or “walking funny” when she came out of the bathroom.

Relying on Id. at 242. Thus, the affidavit failed to link the treatment to the accident. In addition, the plaintiff’s doctor refused to testify affirmatively that the accident caused the plaintiff’s pain. Here, by contrast, Dr. Wetz answered “yes” to an interrogatory asking whether his charges were “reasonable and the services performed were necessary for the proper care and treatment of the patient, for the injuries she sustained on 08/12/91.” (Emphasis added). Thus, there is evidence to support the trial court’s judgment.

We overrule appellant’s first point of error.

Second point of error

Finally, Benji argues that the award of $10,000 in damages was “so against the great weight and preponderance of the evidence as to be manifestly unjust.”1 Benji’s argument under this point seems to concede that there was evidence that Kames suffered between $600 and $900 in lost income, and that her medical bills totaled $5,264. Assuming that the trial court awarded Kames $900 for her lost income, there remains $3836 unaccounted for. Benji argues that “[i]t appears that the amount of damages of ten thousand dollars ($10,000) was an arbitrary figure, with no obvious relation to the actual damages, the medical expenses, or the alleged lost income.” Benji seems to ignore the fact that in addition to medical expenses and lost income, Kames pled damages for pain and mental anguish as well. Indeed, the trial court specifically found that Kames suffered pain and mental anguish as a result of her injury, and Benji does not challenge that finding.

*3 We cannot say that the evidence was insufficient to support the trial court’s award of $3836 for Kames’ pain and suffering. “Translating pain and mental anguish into dollars is necessarily an arbitrary process.” Skaggs Alpha Beta, Inc. v. Nabhan, 808 S.W.2d 198, 202 (Tex. App.-El Paso 1991, no writ). Once the existence of pain and mental anguish was established, the trial judge, as the factfinder, acted within his discretion in determining the proper amount of damages. Id.

We overrule Benji’s third point of error.

Kames asks this court to award Texas Rule of Appellate Procedure 84 damages. We do not find that Benji, Inc. has taken this appeal for delay only, as Kames asserts. The request for damages under rule 84 is denied.

We affirm the judgment of the trial court.

Justices ANDELL and FARRIS2 also sitting.



We note as an initial matter that by referring to the “great weight” of the evidence, Benji has phrased this point of error as if it had the burden of proving damages. Damages are an element of the plaintiff’s case, and therefore should be challenged using an “insufficient evidence” point of error. See Raw Hide Oil & Gas v. Maxus Exploration, 766 S.W.2d 264, 275 (Tex. App.-Amarillo 1988, writ denied).


The Honorable David Farris, former Justice, Court of Appeals, Second District of Texas at Fort Worth, sitting by assignment.

End of Document