Charter Oak Fire Ins. Co. v. Taylor

• Decision Date: 01 September 1983
• Docket Number: No. 01-82-0821-CV,01-82-0821-CV
• Citation: 658 S.W.2d 227
• Parties: CHARTER OAK FIRE INSURANCE COMPANY, Appellant, v. George B. TAYLOR, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 227

658 S.W.2d 227

CHARTER OAK FIRE INSURANCE COMPANY, Appellant, v. George B. TAYLOR, Appellee.

No. 01-82-0821-CV.

Court of Appeals of Texas Houston (1st Dist.).

Sept. 1, 1983.

Craig Smyser and Barbara Radnofsky, Houston, for appellant.

Charles Browning and John Campbell, Houston, for appellee.

Before EVANS, C.J., and BULLOCK and LEVY, JJ.

OPINION

LEVY, Justice.

Appellant seeks reversal of the trial court's judgment ordering it to pay workers' compensation benefits for total and permanent disability to appellee, George B. Taylor, for a back injury he incurred while in the course and scope of his employment with the Goodyear Tire and Rubber Company.

In its sole point of error, appellant complains of the refusal by the trial court to submit its tendered instruction to the jury relating to "sole cause." ¹ Appellant contended that a pre-existing back condition, rather than the injury sustained in the slip-and-fall accident, was causing appellee's current disability. Medical testimony in support of both parties was presented at trial from depositions to the effect that appellee is currently suffering from a long-term degenerative spine condition called "stenosis," defined as a narrowing or closing down of the canal carrying the spinal cord. Appellant contends that the trial court abused its discretion in refusing the "sole cause" instruction, as the evidence supported submission of this instruction, and that its refusal deprived appellant of a legal defense to appellee's claim by not allowing the jury to consider its defense of "sole cause."

Prior to the 1973 amendment to Rule 277 of the Texas Rules of Civil Procedure, "sole cause" was submitted to the jury as a special issue, when the pleadings and evidence raised the point. Webb v. Western Casualty and Surety Co., 517 S.W.2d 529 (Tex.1974). The rule, as amended now, states that "inferential rebuttal issues shall not be submitted." Tex.R.Civ.P. 277. "Sole cause" and "sole proximate cause" issues constitute inferential rebuttal issues, and as such are no longer submitted to the jury. Sendejar v. Alice Physicians and Surgeons Hosp., 555 S.W.2d 879 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.) See also McCane Sondock Detective Agency v. Penland Distributors, 523 S.W.2d 62 (Tex.Civ.App.--Houston [14th Dist.] 1975, no writ).

An "inferential rebuttal" has been defined as an issue which disproves the existence of an essential element submitted in another issue. Select Ins. Co. v. Boucher, 551 S.W.2d 67 (Tex.Civ.App.-Houston [1st Dist.] 1977), affirmed, 561 S.W.2d 474 (Tex.1978). Thus, in appellant's case, if the pre-existing back condition was found to be the "sole cause" of appellee's disability, this would negate the possibility that the industrial injury was a producing cause of appellee's problems. By virtue of Rule 277, inferential rebuttal issues should be submitted to the jury by way of instruction. Select, supra. Appellant argues, however, that the rule mandates that the instruction be given. This is not the case. The trial court has considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. Thomas v. St. Joseph's Hosp., 618 S.W.2d 791 (Tex.Civ App.-Houston [1st Dist.] 1981, no writ). Rule 277 says "the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict." Tex.R.Civ.P. 277. In McCane Sondock Detective Agency v. Penland Distributors, supra, the court held that a "sole proximate cause" issue, which is an inferential rebuttal, is to be submitted as an instruction. The court noted that Rule 277 required such explanatory instructions be submitted as shall be proper to enable the jury to render a verdict. The court held that "the sufficiency of the explanations necessary to that end is largely left to the discretion of the trial judge." McCane, 523 S.W.2d at 67. Thus, it is clear that the standard of review is abuse of discretion.

In order to determine whether an abuse of discretion was committed, we must examine the inferential rebuttal cases to determine what was required in order for a party to have been entitled to such instruction. These cases reveal that the requested instruction should be given only if there are pleadings raising the issue and there is some evidence presented at the trial in support thereof. In Webb, supra, the Supreme Court found that no evidence was presented to raise the issue of "sole cause." The Court said that no evidence was raised when the doctor, testifying about a pre-existing condition being the only cause of a heart attack, said it was possible, but highly unlikely. Webb, 517 S.W.2d 529 (Tex.1974). Appellant points out that while one of the examining physicians testified in the case at bar that it was possible, not probable, that a person might heal from a soft-tissue injury but still suffer incapacity from the pre-existing stenosis, he did not repudiate this as highly unlikely, as was done in Webb. The Texas Supreme Court has held that the substance of a doctor's testimony, rather than the use of magic words like "reasonable medical probability", determines the testimony's content and meaning; the content and meaning do not turn on formal semantics. Ins. Co. of North America v. Myers, 411 S.W.2d 710 (Tex.1966). In Evans v. Casualty Reciprocal Exchange, 579 S.W.2d 353 (Tex.Civ.App.-Amarillo 1979, writ ref'd n.r.e.), no error was found in the trial court's submission of a "sole cause" instruction, where there was ample evidence to support the jury's findings that no incapacity existed from the injury. Pleadings must raise the issue and the evidence must show the causal connection between the pre-existing condition and the injury "upon the strength of reasonable probability." In deciding a factual sufficiency point on appeal, the reviewing court must consider and weigh all the evidence. In re King's Estate, 244 S.W.2d 660 (Tex.1951); Corpus Christi Bank & Trust v. Roberts, 587 S.W.2d 173 (Tex.Civ.App.-Corpus Christi 1979), affirmed 597 S.W.2d 752 (Tex.1980).

Ample evidence was presented in the doctors' testimony to raise "sole cause." One doctor testified that it was only possible, not probable, that the problems appellee...