Casualty Ins. Co. of Cal. v. Salinas

• Decision Date: 09 March 1960
• Docket Number: No. A-7385,A-7385
• Citation: 90 A.L.R.2d 1056,160 Tex. 445,333 S.W.2d 109
• Parties: , 90 A.L.R.2d 1056 CASUALTY INSURANCE COMPANY OF CALIFORNIA, Petitioner, v. Martin A. SALINAS, Respondent.
• Court: Texas Supreme Court

Page 109

333 S.W.2d 109

160 Tex. 445, 90 A.L.R.2d 1056

CASUALTY INSURANCE COMPANY OF CALIFORNIA, Petitioner, v. Martin A. SALINAS, Respondent.

No. A-7385.

Supreme Court of Texas.

March 9, 1960.

House, Mercer & House, San Antonio,

House, mercer & House, San Antonio, for petitioner.

Putman & Putman, Richard G. Strong, San Antonio, for respondent.

NORVELL, Justice.

This is a workmen's compensation case in which the Court of Civil Appeals sustained the sole point contained in appellant's brief and reversed the judgment of the trial court because of the exclusion of evidence proffered by the plaintiff, Martin A. Salinas. See, Salinas v. Casualty Insurance Company of California, Tex.Civ.App., 323 S.W.2d 600.

At the outset we are confronted with a jurisdictional question. Salinas as respondent here contends that this Court has no jurisdiction of this cause and cites Kansas City M. & O. Ry. Co. v. Torres, Tex.Com.App., 57 S.W.2d 1099 in support of his position. There is some inconsistency of decisions upon the point and an analysis of the decided cases is necessary.

First, however, we set forth the essential facts of the present case insofar as they bear upon the jurisdictional issue. Salinas, while employed by Howel Refining Company was injured when a fellow workman dropped a large bolt upon his right shoulder. He claimed a temporary total incapacity, and a permanent partial incapacity of thirty per cent. The jury found, however, that the partial incapacity was limited to 52 weeks.

Upon the trial, Salinas testified as to his injury, the extent and duration of a disabling pain in his shoulder and back, and maintained that such pain persisted to the date of trial. Two doctors testifying for the insurance carrier stated that Salinas was not seriously injured, had suffered little or no pain except for a short period after the injury, and in effect was malingering. To offset this medical testimony, Salinas called three lay witnesses and tendered proof that Salinas had complained of present existing pain at various times subsequent to his injury. The trial court excluded this testimony.

Upon appeal, Salinas presented one point only, namely:

'The trial court erred in refusing to permit appellant's attorney to introduce evidence of spontaneous oral complaints of present pain and suffering made by the appellant, Martin Salinas.'

The Court of Civil Appeals sustained this point, held that the error was prejudicial, reversed the judgment of the district court and remanded the cause for another trial. Tex.Civ.App., 323 S.W.2d 600.

In summary, we may point out that:

a. The only error complained of related to the exclusion of evidence.

b. The exclusion of the evidence proffered by Salinas did not prevent his making out a case. He was permitted to testify to an enduring pain in his shoulder and back.

c. The Court of Civil Appeals' judgment was one of reversal.

This is not a case like Pittman v. Baladez, Tex., 312 S.W.2d 210, where this Court, after acquiring jurisdiction upon another point, proceeded to decide a question involving the admissibility of evidence and reversed the case upon an error of the trial judge in admitting improper testimony. ¹ The particular jurisdictional statute involved is Article 1728, § 6, Vernon's Ann.Tex.Civ.Stats. We quote from such statute as follows:

'The Supreme Court shall have appellate jurisdiction co-extensive with the limits of the State, extending to all questions of law arising in the following cases when same have been brought to the Courts of Civil Appeals from appealable judgment of trial courts. * * *

'6. In any other case in which it is made to appear that an error of substantive law has been committed by the Court of Civil Appeals which affects the judgment, but excluding those cases in which the jurisdiction of the Court of Civil Appeals is made final by statute.'

Much of the confusion among the cases stems from two varying concepts of the term 'substantive law.' ² In Trinity & Brazos Valley Ry. Co. v. Geary, (Jan. 1915) 107 Tex. 11, 172 S.W. 545, 547, Chief Justice Brown took the position that the denial of a statutory or constitutional right which substantially affected the rights of a defendant to maintain its defense was an error of substantive law over which this Court has jurisdiction. ³

Former Supreme Court Justice Hart, writing in the Texas Law Review in 1951 made this comment with reference to Trinity Brazos Valley Ry. Co. v. Geary, viz.:

'This decision illustrates the fact that the phrase 'substantive law' is used in a very broad sense to include any ruling which substantially affects the result of the case, and that as so used it applies to matters which are procedural and which in other connections would be thought of as matters of 'adjective law' rather than 'substantive law." Hart, Appellate Jurisdiction of the Supreme Court of Texas, 29 Tex.Law Review 285, 1. c. 297.

Similarly, Judge Robert W. Stayton pointed out that:

'The Supreme Court early construed the statute to mean an error which substantially affected the right to recover or defend, in other words, an error involving what is commonly understood as a 'right', whether at law or in equity, and regardless of the fact that it had come to the appellate court in an adjective vehicle.' 7 Tex.Law Review 115, 1. c. 118.

Judge Stayton's footnote comment was that, 'As a practical matter the court could not have construed the Act literally since practically all errors depend upon adjective rulings.' 7 Tex.Law Review 115, 1. c. 118.

With minor exceptions the rule laid down by Chief Justice Brown seems to have been consistently followed by this Court except for questions arising from the admission or exclusion of evidence. For instance, the question of whether or not a jury's answers to special issues are conflicting and the effect of a rule requirement that a court's charge should be in writing present matters of procedural or adjective law; yet in the landmark case of Denbow v. Standard Accident Insurance Company, 143 Tex. 455, 186 S.W.2d 236, both the Court and the dissenting justice evidently regarded the matter of this Court's jurisdiction of such questions as being so well settled that no mention was made thereof.

While the wording of the jurisdictional statute throughout its various amendments hardly affords a basis for distinguishing between evidence matters and other procedural problems of adjective law, a distinction based on evidence apparently had its origin in the case of Browder v. Memphis Independent School District, (Dec. 1915) 107 Tex. 535, 180 S.W. 1077, 1078, wherein Chief Justice Phillips, writing for the Court, said:

'The assignment of error relating to the action of the trial court in overruling the plaintiffs' motion for a continuance does not present a question of substantive law, and we therefore have no jurisdiction to review that ruling. For the same reason we are without authority, under the remaining assignment in the petition for writ of error, to review the action of the Court of Civil Appeals upon the assignments of error made in that court concerning the rulings of the trial court on the admission of certain testimony. The admissibilty of this testimony cannot be said to constitute a question of substantive law in this case.'

This case seems to work a departure from the concept of 'substantive law' set forth from Trinity & Brazos Valley Ry. Co. v. Geary and recognized as a basis for determining jurisdictional questions the distinction between adjective and substantive law. It should be noticed that Browder v. Memphis Independent School District does not, however, treat questions of evidence as belonging to a special category of adjective law. Seemingly, all matters of procedure were considered beyond the jurisdiction of this Court.

The holding of Kirksey v. Southern Traction Company, 1919, 110 Tex. 190, 217 S.W. 139, 140, is clearly to the effect that questions relating to the admissibility of evidence present questions of adjective law only. The opinion concludes:

'Numerous assignments of error presented by the Traction Company to the Court of Civil Appeals were not considered there. Several of them relate to admissibility of certain evidence presenting questions of adjective law over which this court has not jurisdiction, under Acts 1913, p. 107 (Vernon's Sayles' Ann.Civ.St.1914, arts. 1521, 1522, 1526, 1543, 1544), under which the application for the writ of error was filed. They, and others, should be considered by that court. Accordingly the judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court for consideration by it of all duly presented unconsidered assignments of error, and for orders not inconsistent with this opinion.'

Chief Justice Phillips was a member of the Court when Kirksey v. Southern Traction Company was decided and in the same year, 1919, wrote the opinion of the Court in Allen v. Pollard, 109 Tex. 536, 212 S.W. 468, which seems to mark a departure from the concept that all matters relating to the admission of evidence present questions of adjective law only and lays the basis for the view that if the evidence be controlling, a matter of substantive as opposed to adjective law is involved.

The suit was one filed by F. M. Allen against Jas. T. Pollard, executor of the estate of W. C. Thomas. The executor took Allen's deposition and inquired as to transactions had with the decedent. The trial court held that the executor had waived the benefits of the dead man's statute although the depositions were never introduced in evidence. Allen was permitted to testify and his evidence made out his case. This Court in sustaining the trial court's action said:

'The Supreme Court's jurisdiction of the case is governed by the Act of 1913. Allen's right of recovery depends upon this testimony. Having this vital relation to the case, the question of the admissibility of the testimony is to be regarded as one of...