Hartford Acc. & Indem. Co. v. McCardell
| Decision Date | 26 June 1963 |
| Docket Number | No. A-9094,A-9094 |
| Citation | 369 S.W.2d 331 |
| Parties | HARTFORD ACCIDENT AND INDEMNITY COMPANY, Petitioner, v. George McCARDELL, Respondent. |
| Court | Texas Supreme Court |
Thomas A. Wheat, Liberty, Fulbright, Crooker, Freeman, Bates & Jaworski, Charles M. Haden and Walter W. Williams, Houston, for petitioner.
J. Robert Liles, of Davis, Phelps, Liles, Norton & Gray, Houston, for respondent.
This is a workmen's compensation case in which the respondent sued for total and permanent incapacity resulting from an injury to his left hip and back caused by being kicked by a mule. The jury found respondent totally incapacitated for a period of five weeks, and inasmuch as petitioner had already paid that amount, judgment was entered that respondent take nothing. The Court of Civil Appeals has reversed and remanded. 360 S.W.2d 831. Hartford is petitioner here.
Petitioner contends that the Court of Civil Appeals was in error in holding, first, that the trial court was in error in overruling respondent's special exception to the pleading; second, that the trial court erred in overruling respondent's motion in limine; and third, that the trial court erred in admitting into evidence certain petitions, affidavits, notices of injury and claims for compensation arising out of five other accidents. We sustain petitioner on its first two points. We overrule petitioner on the third point and affirm the judgment of the Court of Civil Appeals.
The pleading in question reads as follows:
'Answering further, if necessary, Defendant says that Plaintiff's disability or incapacity, if any, was caused by some disease, condition of health, some physical defect and/or some injury other than that made the basis of this suit, or some other cause or combination of causes unrelated in whole or in part to the alleged injury or disease alleged herein and made the basis of this suit.'
Respondent specially excepted to this pleading on the ground that it was too general, and he requested that petitioner be required to plead specifically which injury or disease or physical defect petitioner relied on. The trial court overruled respondent's exception; the Court of Civil Appeals held this to be error. We sustain petitioner's point of error complaining of this holding.
The Court of Civil Appeals assumed that this pleading was intended as an allegation of facts raising an affirmative defense under Article 8306, § 12c, Vernon's Ann.Tex.St. 1 It is difficult to tell from the pleading itself whether it was designed as a pleading of 12c defense or as a pleading of the inferential rebuttal defense actually submitted to the jury in Special Issue Number 11.
The two defensive issues submitted to the jury read as follows:
'SPECIAL ISSUE NO. 11
'Do you find from a preponderance of the evidence, that the incapacity, if any, which the Plaintiff, George McCardell, has had or will have, has not been or will not be due solely to some other injury or disease or condition of his body, or a combination thereof, if any, unconnected with the injuries sustained, if any, on July 18, 1957?
'To which the Jury answered 'It is due solely'.
'If you have answered the preceding Special Issue No. 11, 'It is not due solely', and only in that event, then answer the following:
'SPECIAL ISSUE NO. 12
'What percentage, if any, do you find from a preponderance of the evidence, that the incapacity, if any, which Plaintiff, George McCardell, has had or will have, has not been or will not be due solely to some other injury or disease or condition of his body, if any, unconnected with the injuries he sustained, if any, on July 18, 1957?
'To which the Jury gave no answer.'
Despite petitioner's consistent argument that it was relying on Section 12c, Special Issue No. 11 is a submission of an inferential rebuttal theory and cannot be considered a proper submission of Section 12c. On the other hand, Special Issue No. 12 appears to inquire of facts which would establish Section 12c rights. We are at a loss to know whether petitioner proceeded under one or both theories. Clearly the pleading does not inform us, and it is insufficient for that reason. Rule 45; Pabst v. Roxana Petroleum Corp., 125 Tex. 52, 80 S.W.2d 956. But respondent's special exception did not raise that question and it is not now before the court. Rule 90.
Regardless of which theory this pleading was meant to state, it was insufficient for want of specific allegations as to which of the other injuries caused the present incapacity. The sufficiency of the pleadings in this case is governed by the principles applied by this court in Agnew v. Coleman County Electrict Cooperative, 153 Tex. 587, 272 S.W.2d 877 (1954), where it was held that a general pleading of contributory negligence would entitle the defendant to submission of special issues inquiring of specific acts of negligence, unless attacked by special exception demanding allegations of the specific acts relied on.
The pleading was insufficient and the trial court was in error in not sustaining respondent's special exception. However, we think the error was harmless for the reason that the trial court in entering judgment specifically disregarded the answer of the jury to Special Issue No. 11 and entered judgment on respondent's issues. The Court of Civil Appeals has reversed the trial court and remanded for a new trial on account of the error of the trial court in overruling the special exception. Rule 503 of the Texas Rules of Civil Procedure provides:
'* * * that no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that an error of law has been committed by the trial court in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the petitioner as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * * *.'
Since the jury answered only one issue submitted under the defective pleadings, and the answer to that issue was disregarded by the trial court, we see no possible way in which the pleadings could have caused the rendition of an improper judgment. There was no complaint that the reading of the defective pleading to the jury was harmful.
We are cognizant of the apparent conflict of the answer to Issue No. 11 and the jury's verdict that the respondent was totally incapacitated for a period of five weeks as a result of the injury sued on. But that question is not before us and we are not passing on the propriety of the trial court's disregarding the answer of the jury to Issue No. 11 and entering judgment on the issues of respondent, the plaintiff below.
The Court of Civil Appeals held that the trial court erred in not sustaining a portion of respondent's motion in limine which sought to suppress evidence of claims, settlements or payments arising out of three other injuries. We sustain petitioner's point of error complaining of this holding.
We held in Bridges v. City of Richardson, Tex., 354 S.W.2d 366 (1962), that a party need not file a motion in limine in order to preserve the right to appellate complaint about erroneous admission of evidence. Proper objection made at the time of the offer of the evidence is sufficient. We stated that the purpose of a motion in limine is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. It seems that the converse of our holding in the Bridges case is that although the overruling of a motion in limine may be error, it is never reversible error.
If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal. In neither case-(1) questions not asked or evidence not offered, or (2) questions asked or evidence offered-should the error of the trial court in overruling the motion in limine be regarded as harmful or reversible error.
Over respondent's objections the trial court admitted into evidence petitions, notices of injury and claims for compensation and affidavits filed in courts and with the Industrial Accident Board in connection with five other injuries respondent had received. The Court of Civil Appeals held that the trial court erred in admitting these instruments because they were not admissions, they were offered merely to show that respondent had filed prior claims and suits and not for the purpose of proving a defense under Article 8306, § 12c.
Petitioner argues that the documents were properly let in as admissions for the purpose of impeaching respondent's testimony and to prove the Article 8306, § 12c defense.
As proof of the rebuttal theory, the ultimate issue of fact to which these documents are said to be relevant is respondent's issue on 'producing cause'. Petitioner's theory is that the mule kick injury was not the producing cause of the incapacity; it seeks to prove this affirmatively by showing that some other injury, or injuries, was the sole producing cause. As evidence of § 12c rights the ultimate issue is whether or not the other injuries contributed to the present incapacity.
Before discussing the law we wish to describe in some detail the contents of the documents themselves and the circumstances surrounding their introduction into evidence.
1951 injury. First, a petition and affidavit filed in a district court in 1951 were offered early in the trial. Respondent admitted on direct examination that he had received a back injury in 1951 while lifting a log, but, he testified, the...
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