Cases Dealing With ''Zero Damages''

In Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954), the Court upheld a decision of the Court of Civil Appeals reversing a judgment that a minor take nothing based on a jury finding of no damages because the undisputed facts disclosed that the minor had suffered damages and accordingly the answer of the jury should be disregarded. Since Lowery, the phrase "zero damages rule" has crept into Texas jurisprudence, but like the "parol evidence rule," it is a misnomer. Just as the "parol evidence rule" is not a rule of evidence, but a rule of substantive law, Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958), similarly, the "zero damages rule" is not a rule of damages. Rather, it is a common name for a challenge to negative jury findings as to damages based on the great weight and preponderance of the evidence, which requires the appellate court to follow standard rules in considering the challenge. In reversing a judgment based on jury findings of zero damages for past physical pain and mental anguish, the Dallas Court of Appeals stated the appropriate standard of review in Monroe v. Grider, 884 S.W.2d 811, 820 (Tex.App.--Dallas 1994, writ denied). In our analysis, we are to consider all of the evidence, both favorable and contrary to the findings, and reverse and remand for a new trial only if the verdict is so against the great weight and preponderance of the evidence that it is manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). We are not to reweigh the evidence and set aside the verdict merely because we feel that a different result is more reasonable. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). The jury is the sole judge of the credibility of the witnesses and the weight given their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The jury may believe one witness and disbelieve another and resolves inconsistencies in any testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Where the jury has enough evidence upon which reasonable minds could differ, we may not substitute our judgment for that of the jury. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). Being mindful that a preponderance of the evidence did not convince the jury where it did not find a fact, we may not reverse merely because we conclude the evidence preponderates toward an affirmative answer. Id.