Cearley v. Royal Globe Ins. Co.

Decision Date06 May 1982
Docket NumberNo. 2-81-009-CV,2-81-009-CV
Citation632 S.W.2d 942
PartiesAlvin Michael CEARLEY, Appellant, v. ROYAL GLOBE INSURANCE CO., Appellee.
CourtTexas Court of Appeals

Foster, Frederick & Hubby and Michael E. Frederick, Arlington, for appellant.

Simon, Peebles, Haskell, Gardner & Betty and Anne Gardner, Fort Worth, for appellee.

Before MASSEY, C. J., and SPURLOCK and JORDAN, JJ.


JORDAN, Justice.

Appeal from a Worker's Compensation case filed by appellant seeking compensation benefits for a compensable injury received in the course and scope of his employment at General Motors Corporation on or about January 5, 1977. The case was submitted to a jury which found that he had received an injury on or about January 5, 1977, while in the scope and course of his employment, which injury was the producing cause of only about 14 days of total incapacity but that the injury was the producing cause of partial incapacity for a period of January 20, 1977 to January 20, 1980.

On motion of appellee, the trial court granted appellee's motion for judgment non obstante veredicto on the ground that there was no evidence to support the answers of the jury to Special Issue No. 1, finding that on or about January 5, 1977 appellant received an injury, and to Special Issue No. 2, finding that such injury was received in the course of his employment.

On appeal, appellant simply insists that the trial court erred in finding that there was no evidence to support the answers of the jury to these two issues and that the granting of the judgment non obstante veredicto was improper.

We affirm.

A judgment non obstante veredicto may be upheld on appeal only where a directed verdict would have been proper. Pilot Life Ins. Co. v. Koch, 617 S.W.2d 786 (Tex.Civ.App.1981, ref. n. r. e.). The trial court cannot disregard any special jury findings unless there is no support in the evidence. As to whether or not the evidence supports the jury's findings the appellate court must determine that there is no evidence of probative value upon which the jury could have made the findings adverse to appellee. Villarreal v. Boggus Motor Co., 471 S.W.2d 615 (Tex.Civ.App.-Corpus Christi, 1971, ref. n. r. e.); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). In applying this test we must consider only the testimony which tends to support the jury's issues and disregard all evidence contrary thereto. LeMaster v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224 (1942).

After reviewing this entire record, and considering, as we must, only that testimony favorable to the jury's findings, we have concluded that there simply is no testimony in this case that appellant received, on or about January 5, 1977, a compensable injury in the course of his employment at General Motors. If this testimony supports any kind of compensable injury under the Worker's Compensation Act it is for an occupational disease, not an accidental injury, an undesigned, untoward event traceable to a definite time, place and cause.

In his original petition, which is the pleading he went to trial on, appellant alleged "serious, painful, and permanent personal injuries as a result of his employment on or about January 5, 1977." More specifically, in paragraph VI of his petition, he alleged: "The injuries which Plaintiff received and the manner in which he received them may be described as follows: While in the course and scope of my employment with General Motors Corporation I was exposed to fumes, gases, and such conditions which has resulted in injury and damage to my respiratory system. Plaintiff has received serious injury to his respiratory system and, is therefore, totally disabled. This disability will be permanent."

Briefly stated, the evidence shows that appellant worked at General Motors from December 15, 1965 until January 5, 1977, when he sustained his alleged injury. He had worked in the chassis department at General Motors, and had worked on the "final line in that department for four years prior to his alleged injury on January 5, 1977." He testified that the final line is the "final dress-up of the car before it goes to have the trim put in." His job was to take the car after it was finally assembled, put gas in it, and start it up to make sure it would run before they got to the end of the line where they were driven off. He checked the lights and the cruise control and started the car. He further testified that in this job he encountered a lot of gas and exhaust fumes, as well as paint smell, since the cars were just freshly painted.

With respect to the "injury" on January 5, 1977, appellant testified as follows:

Q. Did you notice you began to have trouble with your body after you had been working there.

A. Yes.

Q. And what part of your body did you begin to have trouble with.

A. I had trouble breathing. My breathing would tighten up.

Q. Tell the jury what you mean when you say tighten up.

A. My nose would stop up completely. I had to breathe through my mouth. It would get to where I was wheezing. I would tire easily from lack of oxygen. My heart would race. My neck would tighten up and after 4 hours, I would get one of those headaches that last a week or so.

Q. Had you ever had anything like this happen to you before?

A. No.

Q. Now, did this begin-did it happen all of a sudden, or did it develop over a period of time?

A. Well, it developed over a long period of time. (Emphasis ours.)

At this juncture counsel for appellee objected on the ground that the pleading set out specific dates, specific events, and that there were no allegations of an occupational disease or some repetitious activity over a period of time. This objection was sustained, and then, for the first time, in response to a direct question from his attorney, appellant said he began having trouble with these symptoms about January 5, 1977. That was the last day he actually worked at General Motors.

This was the extent of the testimony as to what happened on January 5, 1977. There was no testimony from any witness as to problems or any trouble that appellant was having on January 5, 1977 that he was not also having on any other day on the "final line" during the four years he worked there. There was not one line of testimony that there was any unusual or excessive, or unusual smell of oil, gasoline, exhaust or paint fumes on January 5, or that they were even any worse on that day than they had been on any other day he worked there. There was no testimony of any blast of fumes, or explosion, or anything out of the ordinary that happened that day.

Two medical witnesses testified in appellant's behalf. Dr. Bobby Smith, an osteopathic family physician and general practictioner, testified, over repeated objections, after being read the accepted definition of "injury" under the compensation law, with the reference in the definition to occupational disease omitted after objection to it was sustained by the court. Dr. Smith said that the inhalation of "petrochemicals" by Appellant on January 5, 1977 constituted an injury and was a producing cause of the medical problems for which he treated appellant. Dr. Smith conducted no tests on appellant and he identified no petrochemicals or other substance at the plant which appellant might have inhaled on January 5, 1977. Neither did he relate any underlying facts, or any unusual occurrence on that particular date to support his opinion. The tests Dr. Smith referred to in his testimony were those made...

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4 cases
  • Hayes v. A.M. Cohron, Inc.
    • United States
    • Nebraska Supreme Court
    • January 23, 1987
    ...for workers' compensation benefits because of a variance between the pleadings and the proof. For example, in Cearley v. Royal Globe Ins. Co., 632 S.W.2d 942 (Tex.App.1982), the plaintiff's original petition alleged that he had suffered an injury to his respiratory system by excess exposure......
  • Chavis v. Director, State Worker's Compensation Div.
    • United States
    • Texas Court of Appeals
    • June 27, 1996
    ...result from a gradual exposure or cumulative development over time, or results from repetitious physical activity. Cearley v. Royal Globe Insurance Co., 632 S.W.2d 942, 946 (Tex.App.--Fort Worth 1982, no Appellant attempted to prove bodily damage due to undue stress. Appellant testified: So......
  • Flavor Finish Resurfacing, L.L.C. v. Ellerkamp
    • United States
    • Texas Court of Appeals
    • August 30, 2012
    ... ... Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 126 (Tex. 2004). When the parties have ... ...
  • Fire and Cas. Ins. Co. of Conn. v. Miranda
    • United States
    • Texas Court of Appeals
    • May 6, 2009
    ...Solomon v. Mass. Bonding & Ins., 347 S.W.2d 17, 19 (Tex.Civ.App.-San Antonio 1961, writ ref'd); see also Cearley v. Royal Globe Ins. Co., 632 S.W.2d 942, 946 (Tex.App.-Fort Worth 1982, no writ). The Texas Labor Code also recognizes this distinction for the purpose of determining "date of in......

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