de los Angeles Garay v. Texas Employers' Ins. Ass'n

Decision Date31 October 1985
Docket NumberNo. 13-85-294-CV,13-85-294-CV
PartiesMaria de los ANGELES GARAY, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.
CourtTexas Court of Appeals

Frank Herrera, San Antonio, for appellant.

Sharon E. Callaway, Groce, Locke & Hebdon, San Antonio, for appellee.

Before NYE, C.J., and BENAVIDES, and DORSEY, JJ.

OPINION

BENAVIDES, Justice.

This is a worker's compensation case in which appellant sought total and permanent incapacity due to an injury to her lower back.

On May 30, 1980, Maria de los Angeles Garay was injured while working in the course and scope of her employment as a seamstress for Levi Strauss & Company in Laredo, Texas. As reflected by the Agreement of Counsel and Order of Trial approved by the trial court, the undisputed facts and issues relevant to this appeal are as follows: (No. 3) As a result of the injury of May 30, 1980, Maria de los Angeles Garay sustained at least some period of total incapacity as that term is defined in the Texas Workers' Compensation Act; (No. 4) As a result of the injury of May 30, 1980, the beginning date of at least the total temporary incapacity began on said date; (No. 9) Maria de los Angeles Garay is entitled to receive weekly compensation benefits of $119.00 for any period of total incapacity which she may have sustained as a result of the injury in question. At trial the stipulations were "received, accepted, approved, and introduced." The jury returned a verdict, leaving blank the answer to Special Issue No. 1, which requested the jury to find the duration of total incapacity. Appellant (Plaintiff) moved for a mistrial due to the jurors' failure to answer Special Issue No. 1. Appellee suggested that the court accept the verdict. The court complied with appellee's suggestion and rendered a take nothing judgment for appellant. We reverse and remand.

Appellant brings two points of error which we will consider together for purposes of this appeal. Appellant alleges that the trial court erred when it accepted the jury verdict, entered a take nothing judgment against appellant, and overruled appellant's motion for mistrial because the jury's failure to answer Special Issue No. 1 was against the great weight and preponderance of the evidence so as to be manifestly unjust to appellant.

Appellee contends that the trial court's judgment should be affirmed because appellant's great weight and preponderance of the evidence points of error were not proper objections to the jury's failure to answer a special issue.

Special Issues Number 1 through 2C were submitted and answered as follows:

SPECIAL ISSUE NO. 1

Find the duration of total incapacity. (By answering "permanent" or by stating the number of weeks).

ANSWER: __________

If you have answered Special Issue Number 1 by stating number of weeks, then answer Special Issue Number 2; otherwise, do not answer Special Issue Number 2.

SPECIAL ISSUE NO. 2

Was the injury a producing cause of any partial incapacity?

(Answer "Yes" or "No").

ANSWER: yez (sic)

If you have answered Special No. 2 "Yes", then answer Special Issue Numbers 2A, 2B, and 2C; otherwise, do not answer Special Issue Numbers 2A, 2B, and 2C.

SPECIAL ISSUE NUMBER 2A

Find the beginning date of partial incapacity. (By stating the month, date, and year).

ANSWER: May 30, 1980

SPECIAL ISSUE NUMBER 2B

Find the duration of partial incapacity. (By answering "permanent" or by stating the number of weeks).

ANSWER: permanent

SPECIAL ISSUE NUMBER 2C

Find Maria de los Angeles Garay's average weekly earning capacity during partial incapacity. (By stating in dollars and cents).

ANSWER: 150.00 wkly (for 52 weeks)

A specific objection is one which enables the trial court to understand the precise question and to make an intelligent ruling, affording the offering party an opportunity to remedy the defect if possible. University of Texas System v. Haywood, 546 S.W.2d 147 (Tex.Civ.App.--Austin 1977, no writ). In this case, it seems clear that the trial court understood the objection to the answers to the charge by way of appellant's motion for mistrial and could have remedied the problem, especially in light of the instructions and stipulations. In failing to answer Special Issue No. 1, the jury impliedly found the answer to No. 1 to be "none" or "zero," which were not options given under the charge or stipulations. Special Issue No. 1 could only be answered by writing "permanent" or "by stating the number of weeks" of total incapacity. We believe such an answer or failure to answer was against the great weight and preponderance of the evidence and that the court erred in failing to grant appellant's motion for mistrial and erred in entering a take nothing judgment.

This court cannot ignore the stipulations made in the trial court regarding appellant's total incapacity. We agree that, as a general rule, the question of the extent and duration of an injury is a question for the jury. Texas Employers' Insurance Association v. Scott, 233 S.W.2d 171 (Tex.Civ.App.--Amarillo 1950, writ ref'd n.r.e.). However, as noted in Lewis v. Commercial Insurance of Newark, New Jersey, 566 S.W.2d 98, 100 (Tex.Civ.App.--Beaumont 1978, no writ), a jury cannot ignore the undisputed facts, and the undisputed facts here show that claimant [Garay] had some period of total incapacity. See Bazzano v. Ware, 530 S.W.2d 650 (Tex.Civ.App.--Beaumont 1975, writ ref'd n.r.e.).

Lewis, 566 S.W.2d 98, was reversed and remanded on the grounds that: 1) the jury finding that the injury did not produce total or partial incapacity was contrary to undisputed facts and thus erroneous, and 2) such error was not made harmless by stipulation that compensation insurer had paid fifteen weeks of compensation. In the same way, the failure to find total incapacity in this case was not harmless error simply because of other monetary stipulations. 1

In addition, Mr. Rodriguez, attorney for appellee, admitted in his closing argument that Garay had suffered some period of total incapacity and even suggested a finding to the jury:

"There was a period of total incapacity, we have agreed to that. Just exactly how much? I don't know, ladies and gentlemen. You need to look at the--I have a suggestion for you. There was a time period when this lady couldn't work anywhere, no doubt about that. There were several, there was one between May and July of 1980, after the initial injury, there was a time period between January and April of 1981 before she went to work at Casa Panchita. And, of course, there was the period after the operation. After Dr. Reyes operated on this lady. And that was back from January to May of 1982. Now, if you add those up, my recommendation to you for total incapacity would be fifty-two weeks, one year." (Emphasis added.)

Even the appellee's argument, therefore, suggests that the jury finding or omission to find was so clearly against the great weight and preponderance of the evidence as to be manifestly unjust.

Appellee cites several cases in its brief for the proposition that appellant failed to preserve her error. The cases cited, however, are distinguishable from the case at bar. In Continental Casualty Co. v. Street, 379 S.W.2d 648, 650 (Tex.1964), Lewis v. Texas Employers' Insurance Association, 151 Tex. 95, 246 S.W.2d 599, 600 (1952); Greener v. Greener, 413 S.W.2d 949 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.); and Peel v. Slobodin, 382 S.W.2d 284 (Tex.Civ.App.--Beaumont 1964, no writ), no objections were made that the verdict was incomplete; in none of these cases did appellant except to the court in receiving, accepting and filing the verdict; there were no motions for mistrial or judgment non obstante veredicto, or motion to disregard the jury findings. Contrary to appellee's argument, these cases did not require the complainant to request the jury to be retained and reconsider its verdict in order to complain on appeal. What is most important is that the error is brought to the attention of the court. In none of the above cited cases was the error brought to the trial judge's attention. In our case, however, appellant pointed out the error, yet the judge chose not to rectify the problem. Both attorneys and the judge were well aware of the pre-trial stipulations in accepting the jury verdict; thus the trial court rendered a judgment which was so clearly against the great weight and preponderance of the evidence as to be manifestly unjust.

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