Com'l Ins. Co. of Newark, N.J. v. Puente

• Decision Date: 15 April 1976
• Docket Number: No. 1032,1032
• Citation: 535 S.W.2d 948
• Parties: COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. Robert PUENTE, Appellee.
• Court: Texas Court of Appeals

Page 948

535 S.W.2d 948

COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant, v. Robert PUENTE, Appellee.

No. 1032.

Court of Civil Appeals of Texas,

Corpus Christi.

April 15, 1976.

Rehearing Denied May 6, 1976.

Ronald B. Brin, Allison, Maddin, White & Brin, Corpus Christi, for appellant.

J. A. Canales, Canales & Garza, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is a workman's compensation case tried to a jury resulting in a judgment for appellee, Robert Puente, against appellant, Commercial Insurance Company of Newark, New Jersey, for total and permanent incapacity. Appellant has duly perfected its appeal to this Court complaining that the evidence is legally and factually insufficient to support the jury's award.

Robert Puente, hereinafter referred to as appellee, was a man, 26 years of age with only an eighth grade education, with no type of specialized training. He went to work for the City of Corpus Christi Sanitation Department in June 1968. His job classification was that of refuse collector. Appellee's duties required riding on the back of a garbage truck, jumping off and picking up trash cans, generally carrying the cans approximately five to six feet, lifting the cans approximately three and a half (3 1/2) to four (4) feet and then tossing the refuse in the truck. Each can weighed on the average twenty (20) pounds although naturally some would weigh considerably more. The job also required that appellee do a considerable amount of running behind the truck sometimes running two to four miles a day. Prior to and at the time of the accident, he was earning $2.39 per hour.

On December 21, 1972, while riding on the back of one of the City's garbage trucks, the platform on which appellee stood broke, causing him to fall to the ground and injuring his back. Appellee's foreman was informed of the accident and took appellee to the City physician and later to a Dr. Hyman P. Roosth, a specialist in the field of orthopedic surgery.

The trial was before a jury which found among other things: that the plaintiff, Robert Puente, received an injury on or about December 21, 1972; that he was injured in the course of his employment; that the injury was a producing cause of total incapacity; that such total incapacity began December 21, 1972; that the duration of such total incapacity was permanent; that the injury was not a producing cause of any partial incapacity; and that the payment of compensation in weekly installments instead of a lump sum would not result in manifest hardship and injury to plaintiff. The trial court rendered judgment that plaintiff recover the sum of $17,452.25 for compensation benefits. The appellant insurance company brings forward six (6) points of error, all being evidentiary points.

In its points of error No. 1 and 4, the insurance company asserts that there is no evidence to support the jury's finding to the special issues that the duration of plaintiff's total incapacity is permanent and that the injury was not a producing cause of any partial incapacity.

The appellee asserts that appellant has waived its no evidence points because appellant failed to lay the proper predicate for such points. 'No evidence' points of error are inherently and fundamentally points which, if sustained, call for reversal of a trial court's judgment and a rendition of judgment for the appellant. They must, therefore, be based upon and related to one or more of the following procedural steps in the trial court: a) motion for instructed verdict; b) objection to the submission to the jury of a vital fact issue; c) motion for judgment notwithstanding the jury's verdict; and d) motion to disregard the jury's answer to a vital fact issue. All are steps which must be taken before the rendition of judgment. See Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error, 38 Texas L.Rev. 361 (1960). When such an assignment is not related to and based on one or more of the four prejudgment motions or objections, but is assigned in the final motion for new trial, the appellate court may consider this point but may only reverse and remand the case for a new trial. In the case at bar, appellant failed to make any of the prejudgment motions set out above. However, it is not necessary for us to consider appellant's no evidence points, as such, in view of our subsequent holding.

Since this case involves primarily the sufficiency of the evidence of the jury's findings, we must first distinguish between 'total' and 'partial' incapacity. Total incapacity occurs when a workman is disabled by injury to such an extent he cannot procure and retain employment at labor of the class he was performing when injured; the term does not imply absolute physical inability to perform any kind of labor. Texas Employers' Ins. Ass'n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944); Travelers Insurance Company v. Smith, 435 S.W.2d 248 (Tex.Civ.App.--Texarkana 1968, writ dism'd). Partial incapacity occurs when injury disables a workman to perform part of the usual tasks of his job, though such disablement does not prevent him from procuring and retaining employment reasonably suitable to his physical condition and ability to work, or when because of his injury he is only able to perform labor of a less remunerative class than he performed before the injury, and as a consequence he suffers a depression or reduction in his earning capacity. Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991 (1942, opinion adopted); Travelers Insurance Company v. Smith, supra.

The court properly charged the jury in giving the following definitions:

"TOTAL INCAPACITY' does not imply absolute inability to perform any kind of labor, but means that One is disabled from performing the usual task of a workman, not merely the usual task of any particular trade or occupation, to such an extent that he cannot get and keep employment.

A person cannot have both total and partial incapacity at the same time.'

and

"PARTIAL INCAPACITY' is any degree of incapacity less than total incapacity, and means that a person's earning capacity is reduced because He can perform only part of the usual tasks of a workman or can only do lower paying work than he could do before his injury, but can get and keep employment suitable to his condition.' (Emphasis supplied).

Appellant also complains in its points of error No. 2 and 5 that there is insufficient evidence to support the jury's finding to the same special issues and in points No. 3 and 6 that such findings are against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

When it is urged that the jury's failure to find a fact is so against the great weight and reponderance of the evidence as to be wrong and unjust, the fact finding power of the Court of Civil Appeals is invoked. In such a case, we are required to weigh all of the evidence and to remand the cause for a new trial if we conclude that the verdict was so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304 (1960); Traylor v. Goulding, 497 S.W.2d 944 (Tex.Sup.1973); Ruiz v. Flexonics, 517 S.W.2d 853 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.).

Considering then all of the evidence, we begin with what occurred immediately after the appellee was hurt. After the appellee was examined by Dr. Roosth, he was admitted to Spohn Hospital on the same day. He was placed on bed rest, physical therapy, pelvic traction and given muscle relaxant drugs. From appellee's symptoms, it appeared to Dr. Roosth that he had a hip strain with secondary back pains. Four days later, appellee was dismissed from the hospital.

On December 29, 1972, Dr. Roosth again examined appellee, with appellee appearing essentially well. The doctor then suggested and appellee did return to work on January 2, 1973. On January 8, 1973, appellee contracted Dr. Roosth complaining that on January 6, 1973, he had another pain in his back. Dr. Roosth still believing that the back pain was secondary to a left hip strain, treated the left hip by a treatment referred to as a partial tendonsheath release of the hip under local anesthetic. After the January 6, 1973, visit to March 12, 1973, Dr. Roosth saw appellee approximately four more...