Atlantic Mut. Ins. Co. v. Middleman, 16899

• Decision Date: 21 September 1983
• Docket Number: No. 16899,16899
• Citation: 661 S.W.2d 182
• Parties: ATLANTIC MUTUAL INSURANCE COMPANY, Appellant, v. Dorothy MIDDLEMAN, Appellee.
• Court: Texas Court of Appeals

Page 182

661 S.W.2d 182

ATLANTIC MUTUAL INSURANCE COMPANY, Appellant, v. Dorothy MIDDLEMAN, Appellee.

No. 16899.

Court of Appeals of Texas,

San Antonio.

Sept. 21, 1983.

Rehearing Denied Nov. 7, 1983.

Emilio M. Garza, Clemens, Spencer, Welmaker & Finck, San Antonio, for appellant.

Les Mendelsohn, Branton & Mendelsohn, San Antonio, for appellee.

Before ESQUIVEL, REEVES, and TIJERINA, JJ.

OPINION

On Appellee's Motion for Rehearing

TIJERINA, Justice.

After reconsideration on appellee's motion for rehearing, this Court orders that the opinion delivered July 20, 1983, reversing the trial court judgment, be withdrawn and that we substitute this opinion in its stead.

This is an appeal from a judgment based on a jury verdict, which set aside a compromise settlement agreement in a worker's compensation case. Based on the jury's verdict, the trial court rendered judgment in favor of appellee, Dorothy Middleman.

The issues raised by appellant in thirty-nine points of error concern the following: (1) alleged trial court error in the admission of irrelevant, hearsay and opinion testimony from the witnesses, Rachael Benevides and Mrs. Middleman; (2) no evidence and insufficient evidence to support the jury's answers to special issues, including the submission of the special issues and questions concerning the jury instructions; (3) error in overruling the motion for directed verdict and motion for judgment notwithstanding the verdict since there was no evidence that Joseph Middleman sustained an injury to his leg, and no evidence that he sustained an injury in the course and scope of his employment; and (4) error in not admitting in evidence a prior inconsistent statement of Rachael Benevides.

The questions of admissibility of evidence raised by appellant will be addressed jointly with point of error number nine, which asserts that the cumulative effect of admission of hearsay testimony was reasonably calculated to cause and probably did cause, the rendition of an improper judgment. To obtain reversal of a judgment based upon error of the trial court in admission or exclusion of evidence, appellant must first show that the trial court's determination was in fact error, and second, that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Hernandez v. Hernandez, 611 S.W.2d 732, 737 (Tex.Civ.App.--San Antonio 1981, no writ). Reversible error is not ordinarily shown in connection with rulings on questions of evidence unless the whole case turns on the particular evidence admitted or excluded. Bridges v. City of Richardson, 349 S.W.2d 644, 649 (Tex.Civ.App.--Dallas 1961, writ ref'd n.r.e.). See also TEX.R.CIV.P. 434.

The evidence complained of consists of the testimony of the co-worker Benevides and Mrs. Middleman, introduced for the purpose of proving that the worker sustained an injury in the course and scope of his employment. Mrs. Middleman testified that she drove her husband to work between 8:15 a.m. and 8:30 a.m., that he was perfectly normal and did not bump himself getting out of the car or entering the building where he worked. The co-worker Benevides testified that she arrived at 8:50 a.m. and found Middleman rubbing his leg and "he said he must have hurt his leg in the stockroom, bumped it." There was further testimony that the stockroom was filled with cartons of shoes. Middleman was unable to walk properly and limped around the store until he was driven home at 4:00 p.m. Mrs. Middleman testified that when he arrived home he was limping and stated that he had hurt his leg when he bumped against a protruding box in the stockroom. The following day he was admitted to the hospital with a diagnosed hematoma of the thigh. Dr. James O'Neill testified that a hematoma is the extravasation of blood usually as the result of trauma, and as follows:

Q: So in your opinion was there a relation, a causal relation between the blow to the leg--assume there was a blow to the leg that caused the hematoma--and the embolism which finally caused Mr. Middleman's death?

A: I would say so.

Excited or spontaneous utterances considered res gestae statements are admissible as evidence as an exception to the hearsay rule, provided there is independent proof of the incident or occurrence to which the statements relate. Hartford Accident & Indemnity Co. v. Hale, 400 S.W.2d 310, 311 (Tex.1966). In this case there is a close proximity between the time the worker entered the employer's premises uninjured and perfectly normal and the time the co-worker found him rubbing his leg. Consequently, there is sufficient direct and circumstantial evidence of probative value to establish where, when and how the worker was injured. The Supreme Court in Hale, supra, did not specifically state that the independent proof of the incident or occurrence to which the statement relates must be established by direct evidence. As a general rule, a fact finder has implied findings power, and can make a reasonable inference from the direct or circumstantial probative evidence. In Harrison v. Harrison, 597 S.W.2d 477 (Tex.Civ.App.--Tyler 1980 writ ref'd n.r.e.), a worker's compensation case concerning the question of whether the worker was injured in the course and scope of his employment, the court stated: "The jury is not only the judge of the facts and circumstances proven, but may also draw reasonable inferences and deductions from the evidence presented to it." Id. at 485. The evidence required in Texas to prove negligence and proximate cause may be established by circumstantial as well as direct evidence. The Supreme Court, in Reina v. General Accident Fire & Life Assurance Corp., 611 S.W.2d 415 (Tex.1981), addressed a question of evidence concerning total and permanent disability from circumstantial evidence produced by lay witnesses. It is within the province of the jury to judge the credibility of the witnesses and to determine the weight to be given their testimony. Diaz v. Cantu, 586 S.W.2d 576, 579-80 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.). A court of appeals cannot substitute its judgment for that of a trier of fact, even though after reviewing the evidence, it may have reached a different conclusion from that of the jury. Johnson v. Buck, 540 S.W.2d 393, 411 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.). In Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186 (Tex.1980), where appellant complained of the admission of testimony by the worker's wife that her husband was on the way to work at the time of the occurrence in question, the Supreme Court stated, "because there was other evidence sufficient to support the jury verdict we need not consider whether the admission of this testimony was error because error, if any, would be harmless." Id. at 193.

Thus, we are of the opinion that the statement of appellee's deceased husband, Joseph Middleman, to the effect that he must have hurt his leg in the stockroom, was admissible evidence because there was other independent evidence to corroborate the injury. We consider the following evidence introduced in court corroborated the statement made by the decedent and the evidence of the occurrence of the event:

1. Mr. Middleman was walking normally upon arrival at work on the date of his injury.

2. Shortly thereafter he was seen rubbing his leg in the stockroom, and complaining of an injury to the limb.

3. That he limped or favored his limb for the remainder of the day.

4. That Mr. Middleman evidenced pain and refrained from active movement during the rest of the day.

5. The testimony of Mrs. Middleman that she administered a heating pad on the painful portion of Mr. Middleman's leg.

6. That shortly after the alleged injury a medical doctor diagnosed Mr. Middleman's injury as a broken blood vessel (hematoma).

7. Mr. Middleman's entrance in the hospital as a result of the injury and his subsequent death two days later.

Scott v. Millers Mutual Fire Insurance Company of Texas, 524 S.W.2d 285, 289-90 (Tex.1975); Gulf Insurance Co. v. Johnson, 616 S.W.2d 320, 323-24 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ granted). See Deatherage v. International Insurance Co., 615 S.W.2d 181, 182-83 (Tex.1981). Points of error one, eight and nine are overruled.

Appellant in his second point of error alleges the trial court erred in sustaining appellee's objection to admission of a prior inconsistent statement by the witness, Benevides, to-wit: "I do not ever recall Mr. Middleman ever saying to me or hearing him tell anyone that he specifically hit his leg against something at the store...." The record reflects that the objection was predicated on appellant's failure to establish a predicate for the introduction of a prior inconsistent statement. Generally, proof of inconsistent statements of a witness can be introduced and considered only for the purpose of impeachment, and not as substantive evidence of the truth of the matters stated. Fultz v. First National Bank in Graham, 388 S.W.2d 405, 408 (Tex.1965). The prior statement was read to the witness Benevides on cross-examination and she acknowledged making the statement, but when appellant sought to introduce the statement as a prior inconsistent statement, appellee objected on the grounds that the statement was not inconsistent and a proper predicate had not been established. The court sustained the objection. We do not find any inconsistency or contradiction in the statements. See Anizan v. Paquette, 113 S.W.2d 196, 199 (Tex.Civ.App.--Galveston 1938, writ dism'd). Also, the proper predicate for the admission of the witness's statement as a prior inconsistent statement was not laid. The well established rule provides that such statements are not admissible unless the witness has first been questioned concerning it and given an opportunity to explain the contradictory character of the statements. Thompson v. Denham, 250 S.W.2d 460, 463 (Tex.Civ.App.--Galveston 1952, writ...