Barrientos v. Texas Employers' Ins. Ass'n, 8438

• Citation: 507 S.W.2d 900
• Decision Date: 11 March 1974
• Docket Number: No. 8438,8438
• Parties: Bernardo BARRIENTOS, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 900

507 S.W.2d 900

Bernardo BARRIENTOS, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.

No. 8438.

Court of Civil Appeals of Texas Amarillo.

March 11, 1974.

Rehearing Denied April 8, 1974.

Smith & Smith, Mark Smith, Lubbock, for appellant.

Crenshaw, Dupree & Milam, Cecil Kuhn, Lubbock, for appellee.

REYNOLDS, Justice.

Dissatisfied with the jury's determination of his average weekly wage and the court's denial of jury-awarded benefits for, and his additional claim regarding, nursing care, plaintiff Bernardo Barrientos seeks to reverse the judgment entered in this workmen's compensation proceeding. Affirmed.

Plaintiff Bernardo Barrientos is a Mexican citizen who, at the time of the trial, was eighteen years of age. He came to the United States in 1969 and went to work on a farm near Runge, in Karnes County, Texas. Following intermittent employment, he moved to Terry County and began working at the Needmore Gin in November, 1971.

While working at the Needmore Gin on December 23, 1971, Barrientos was involved in a tractor accident, suffering serious injury to his back and shoulder. After treatment in the Methodist Hospital in Lubbock, Barrientos was sent to the Bivins Rehabilitation Center in Amarillo. Leaving there, he went back to Runge and later moved to Ropesville, in Hockley County, where he lived with the Augustina Perez family. Mr. and Mrs. Perez cooked his meals, washed his clothes, and assisted him in taking care of his personal needs. Later, he moved to Lubbock County and stayed with the Concepcion Alcorta family, who rendered services similar to those performed for him by the Perez family. On December 18, 1972, Barrientos went to Mexico to stay with his family, and he was living there at the time of the trial in May, 1973.

Defendant Texas Employers' Insurance Association, compensation insurance carrier for the Needmore Gin, stipulated that plaintiff Barrientos was totally and permanently disabled. The trial court refused to permit Barrientos to proceed on his claim for nursing care rendered by his family in Mexico. Responsive to the special issues submitted, the jury found Barrientos' average weekly wage to be $70.00, and the reasonable value of the nursing care rendered by the Perez and Alcorta families to be $1,900.00 and $445.00, respectively. Pursuant to defendant's motion, the court set aside the jury's findings concerning nursing care, and entered judgment in favor of Barrientos for $13,690.96 as workmen's compensation benefits.

Drafting twelve numbered points of error, Barrientos presents four basic complaints. Essentially, the complaints are that the trial court erred in (1) denying recovery for the amount awarded by the jury for nursing care; (2) refusing Barrientos the opportunity to present his claim for nursing services rendered by his family in Mexico; (3) not finding as a matter of law that his average weekly wage was more than $70.00; and (4) failing to instruct the jury that it was entitled to consider Barrientos' prospective increase in wages as he grew older.

The first basic complaint is introduced through points one, two and six. There is no dispute that, under Vernon's Ann.Civ.St. art. 8306, § 7, in effect when Barrientos received the services, the reasonable amount an injured employee expended or incurred for nursing services could be recovered if the insurer refused, neglected or failed to furnish the services within a reasonable time . Disputed, however, is whether Barrientos demanded and was refused nursing services; nevertheless, a resolution of the dispute is not practical, for the action of the court in setting aside the nursing services findings was correct in two respects.

In the first instance, Barrientos could recover only for the nursing services expenses he actually paid or incurred. Maryland Casualty Co. v. Hendrick Memorial Hospital, 141 Tex. 23, 169 S.W.2d 969 (1943). The record is devoid of any evidence that Barrientos either expended or incurred any expense for the services furnished him by the Perez and Alcorta families. Barrientos did not testify that he had incurred any expense; and he, Mr. Perez and Mrs. Alcorta all admitted that no payment had been made and that there was no agreement that Barrientos would pay anything.

Secondly, and alone decisive, is that there is no evidence of the reasonable value of the services furnished Barrientos by either the Perez family or the Alcorta family. The only testimony bearing on the question of the value of nursing services was given by Reba Church, a registered nurse, practicing in the Brownfield General Hospital in Brownfield, Terry County. Mrs. Church, in detailing the qualifications and duties of registered nurses and licensed vocational nurses, stated the rate of pay commanded by each in Terry County. She stated that 'sitters' sometimes are employed to stay with a patient, but that a sitter would not in any way be comparable to a licensed vocational nurse. Mrs. Church specifically testified that she had no knowledge whatsoever of the wages paid in the community for various other capacities or what would be a reasonable fee for a sitter.

In this connection, there is no evidence that any member of either the Perez or Alcorta family was a registered nurse or a licensed vocational nurse, or possessed any comparable skills of either. The most that can be said with respect to the services rendered is that they were similar to those performed by a sitter. Not only is there a complete lack of evidence of the wage rate for a sitter, there is no evidence of the value of any service performed in Hockley County, where the Perez family lived, or in Lubbock County, where the Alcorta family lived.

Because there was no evidence to support the jury's findings respecting nursing services, the trial court was correct in setting them aside. Points one, two and six are overruled.

The designated point of error number five is mere argument and fails to contain any assertion of error; therefore, it is insufficient as an assignment of error. Rule 418, Texas Rules of Civil Procedure. The text, however, is closely related to the foregoing points and, since they were overruled, this designated point is also overruled.

The second basic complaint, arising by points three and four, that the court erred in refusing plaintiff the opportunity to present his claim for nursing services furnished by his family in Mexico, requires a background statement. By amended pleadings filed after the May, 1973 trial date was set, plaintiff alleged entitlement to recovery for various nursing...