BORDER APPAREL-EAST, INC., Appellant, v. Isabel GUADIAN, Appellee, 868 S.W.2d 894

OPINION BARAJAS, Justice. This is an appeal from a judgment rendered against Border Apparel-East, Inc., Appellant, for the sum of $300,100 plus interest and costs following a jury trial of a non-subscriber negligence case. In a single point of error, Appellant attacks the trial court’s order overruling Appellant’s Motion for New Trial. We reverse the judgment of the trial court. I.

SUMMARY OF THE EVIDENCE Isabel Guadian, Appellee, brought this action against Appellant, her employer, for injuries sustained as a result of a slip and fall at her work site. The record in the instant case demonstrates that at the time of trial, Appellee was 46 years old with a seventh grade education. She began working in the garment industry at the age of 17 as a sewing machine operator and had continued in this vocation until her injury in October of 1990. The record shows that as a result of the accident, Appellee is no longer able to perform the work that she performed prior to her injury.

The record shows that at the time of trial, sewing machine operators in Appellant’s employ were paid minimum wage, with additional pay according to a piece-rate system. While the president of Appellant company testified that the average pay for a good operator was approximately $5.50 per hour, an operator could make up to $7 per hour depending on the speed of work. There is no evidence as to how much Appellee actually had been earning prior to her injury. The jury awarded Appellee the sum of $237,120 for loss of earning capacity in the future, in addition to other damages.

Appellant filed a motion for new trial, contending in part that the evidence at trial was factually insufficient to support the award of the above sum for loss of earning capacity in the future. The trial court overruled Appellant’s motion, forming the basis of this appeal. II. DISCUSSION In its sole point of error, Appellant asserts that the trial court erred in overruling its motion for new trial. Specifically, Appellant asserts that the award of $237,120 for loss of earning capacity in the future is not supported by factually sufficient evidence.

Appellant further asserts that the award is excessive because it has not been reduced to present value. A. Standard of Review A refusal to grant a motion for a new trial is tested by the abuse of discretion standard. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.1983); Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 886 (Tex.App.-Houston [1st Dist.] 1988, no writ). An appellate court should reverse a trial court for abuse of discretion only when “after searching the record, it is clear that the trial court’s decision was arbitrary and unreasonable.” Simon v.

York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex.1987). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court’s actions. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Another way of stating the test is whether the act was arbitrary or unreasonable. Id. at 242, citing Smithson v.

Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242, citing Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965) and Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (Tex.1959). A mere error of judgment is not an abuse of discretion. Loftin v.

Martin, 776 S.W.2d 145, 146 (Tex.1989). A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951); Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d 131, 136 (Tex.App.-El Paso 1992, writ denied); Chandler v. Chandler, 842 S.W.2d 829, 832-33 (Tex.App.-El Paso 1992, writ denied). The reviewing court cannot substitute its conclusions for those of the jury.

If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Oechsner v. Ameritrust Texas, N.A., 840 S.W.2d at 136; Chandler, 842 S.W.2d at 833. It is not within the province of the court to interfere with the jury’s resolution of conflicts in the evidence or to pass on the weight or credibility of the witness’s testimony. Benoit v. Wilson, 239 S.W.2d 792 (Tex.1951); Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.—El Paso 1984, no writ). Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.

Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508 (Tex.1947); Oechsner, 840 S.W.2d at 136; Chandler, 842 S.W.2d at 833. B. Burden of Proof in Establishing Loss of Earning Capacity Lost earnings refer to an actual loss of income due to an inability to perform a specific job that a party held from the time an injury was incurred to the date of trial; loss of earning capacity, or diminished capacity to earn a livelihood, encompasses the plaintiffs impairment to work after the date of trial. See Bonney v. San Antonio Transit Co., 325 S.W.2d 117, 121 (Tex.1959).

The central question to the proper disposition of the instant appeal is not what Appellee actually earned prior to her injury, but what her capacity to earn a livelihood actually was, and to what extent that capacity has been impaired. See Crown Plumbing, Inc. v. Petrozak, 751 S.W.2d 936, 938 (Tex.App.-Houston [14th Dist] 1988, writ denied). Loss of earning capacity that a plaintiff will suffer in the future is always uncertain and is left largely to the jury’s sound judgment and discretion. McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943); Tri-State Motor Transit Co. v.

Nicar, 765 S.W.2d 486, 492, (Tex.App.-Houston [14th Dist.] 1989, no writ). There is no general rule governing the proof required, except that each case is judged on its particular facts and the damages need be proved only to the degree to which they are ascertainable. See Bonney v. San Antonio Transit Co., 325 S.W.2d 121. Recovery for loss of future earning capacity does not require a showing of lost earnings, although the most obvious and direct proof of loss of earning capacity is loss of earnings themselves. Springer v.

Baggs, 500 S.W.2d 541, 544 (Tex.Civ.App.—Texarkana 1973, writ ref'd n.r.e.); see also Ryan v. Hardin, 495 S.W.2d 345 (Tex.Civ.App.- Austin 1973, no writ). Furthermore, as Springer explains, Factors such as stamina, efficiency, ability to work with pain, and the weakness and degenerative changes which naturally result from an injury and from long suffered pain are legitimate considerations in determining whether or not a person has experienced an impairment in future earning capacity. 500 S.W.2d at 544-45; see also Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d at 492.

Consequently, damages for loss of earning capacity need not be based on any specific degree of physical impairment, but can, and should be based on a composite of the above factors, all of which may directly affect one’s capacity to earn a livelihood. Id.; see also Goldston Corp. v. Hernandez, 714 S.W.2d 350, 352 (Tex.App.-Corpus Christi 1986, writ ref'd n.r.e.). After carefully reviewing the record as a whole, we are unable to find sufficient competent evidence to support the jury’s award of $237,120 for loss of earning capacity in the future.

While we recognize that the amount of such damages must be left to the sound discretion and judgment of the jury, the jury should not be left to mere conjecture where the facts upon which the jury could base an intelligent answer could be readily obtained. Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 661 (Tex.App.-El Paso 1989, writ denied). We first examine the first and most obvious factor in determining loss of earning capacity, i.e., Appellee’s loss of earnings themselves.

In the instant case, the facts of Appellee’s actual earnings prior to her injury were readily available to Appellee and could have been presented to the jury. This essential evidence, while not dispositive of the issue, and but only one method of proving lost earning capacity, would have permitted the jury to make a reasonable projection of Appellee’s future income potential. As discussed above, the president of Appellant company testified that sewing machine operators were paid minimum wage, $4.25 per hour, with additional pay on a piece-rate system.

This evidence does not, however, shed any light on how much Appel-lee was in fact earning as a sewing machine operator. See Jones v. Martin, 481 S.W.2d 467 (Tex.Civ.App.-Texarkana 1972, no writ). Appellee herself failed to present any evidence as to her earning power prior to her injury or how many hours per week she worked, nor did she present any evidence as to her work-life expectancy or the future growth rate of wages for sewing machine operators in general. There was no evidence that Appellee ever reached her production quotas, thereby entitling her to a salary over and above minimum wage.

She very well may have greatly exceeded the quotas and earned substantially more than the minimum wage. The record is silent as to the number of hours worked per week, whether her work history was one of a full-time or part-time worker. She may have worked fewer than forty hours per week, or she may have worked more than forty hours per week. The record is almost completely devoid of any evidence of Appellee’s performance on the job. Moreover, there is no evidence of any tax records to the extent they show Appellee’s earnings from work, Wilkins v.

Royal Indemnity Co., 592 S.W.2d 64 (Tex.Civ.App.-Tyler 1979, no writ); no evidence of any fringe benefits to which Appellee would be entitled, in addition to her minimum wage salary, see Tom’s Toasted Peanuts, Inc. v. Doucette, 469 S.W.2d 399 (Tex.Civ.App.-Beaumont 1971, writ ref'd n.r.e.); and no evidence to any prospects for Appel-lee’s advancement or promotion with increased pay, if there is “reasonable prospect.” Smith v. Triplett, 83 S.W.2d 1104 (Tex.Civ.App.-Galveston 1935, no writ); see also Ingleside v. Kneuper, 768 S.W.2d 451 (Tex.App.-Austin 1989, writ denied).

We next view any other factors which would generally affect one’s capacity to earn a livelihood, and find that Appellee has failed to present evidence as to her stamina, her efficiency, or any other evidence as to the existence of any other weaknesses or other degenerative changes which occurred as a natural result of having sustained her injury. See Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d at 492.

Thus, while evidence of Appellee’s loss of earning capacity need not be based on any specific degree of physical impairment, nor based exclusively on loss of earnings, but rather on a composite of all factors which generally may directly affect one’s capacity to earn a livelihood, we find the jury’s award for loss of earning capacity in the future is not supported by factually sufficient evidence.

Based upon the dearth of any such evidence in the record, the jury was simply left to speculate on Appellee’s actual earnings prior to her injury, on the effect of her injury on her stamina and on her efficiency, and thus were left to surmise to what extent Appellee’s earning capacity, i.e., her ability to earn a livelihood had been impaired as a result of her injury.

The absence of sufficient evidence of future wage expectancies leads us to the con-elusion that the jury was unnecessarily deprived of sufficient evidence from which to calculate future lost earning capacity to a degree of certainty to which it is susceptible. See Paragon Hotel, 783 S.W.2d at 661-62. Accordingly, Appellant’s sole point of error is sustained. Because Appellee failed to establish an essential element of the proper measure of damages, the judgment of the trial court is reversed and the cause remanded for a retrial of all issues, since the damages are unliquidated and liability was contested.

Id. at 662; Tex.R.App.P. 81(b)(1). Having found the evidence insufficient to support the jury’s award of $237,120 for loss of future earning capacity, we need not address whether this award was excessive because it was not discounted to present value by the jury. The judgment of the trial court is reversed and the cause remanded for a retrial of all issues. . The piece-rate system was described by the president of Appellant company as requiring the operators to meet certain production quotas, beyond which the operator’s pay is increased.

Consequently, the faster an operator works, the more money per hour he or she earns. Neither the precise formula for the piece-rate determination of each operator's pay nor the person in charge of making this determination can be found in the record. . The record shows that Appellee's attorney, in his opening statement, stated that Appellee made about $5 per hour. Further, in his closing argument, he used the $5 per hour figure once again to compute the amount of Appellee's loss of earning capacity, based on a work-life expectancy of fourteen additional years.

The record however, is strangely silent as to any evidence to support such a contention. . Appellant's sole point of error is multifarious in nature insofar as it embraces more than one specific ground of error. Pooser v. Lovett Square Townhomes Owners’ Assoc., 702 S.W.2d 226, 228 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). While this Court is not required to consider multifarious points of error, it will do so in the interest of justice. Wheat v. Delcourt, 708 S.W.2d 897, 901 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). .

We emphasize once again that actual earnings in the past are not necessarily indicative of the loss of earning capacity in the future, but such evidence is at least a factor that can be considered in making the damage award calculation. Texas Dept. of Human Services v. Hinds, 860 S.W.2d 893, 900-901 (Tex.App.-El Paso 1993, writ requested). Indeed, under certain circumstances, such evidence may be the most accurate indication of earning capacity in the future. . The record shows that in response to a question asking how Appellee was as a worker before her injury, a co-worker testified that, "She was okay.

She was always sewing.” Other than some testimony and documentary evidence of her attendance record at work, this was the only evidence of Appellee’s job performance. .The statements of Appellee’s attorney that Ap-pellee had been earning approximately $5 per hour and had a work-life expectancy of fourteen years, made during his opening statements and jury argument, are not competent evidence that could support the jury’s finding. Collier Servs. Corp. v. Salinas, 812 S.W.2d 372, 377 (Tex.App.-Corpus Christi 1991, no writ); Eckerdt v.

Frostex Foods, Inc., 802 S.W.2d 70, 71 (Tex.App.-Austin 1990, no writ); see Tex.R.Civ.Evid. 603.