Highlands Underwriters Insurance Co. v. Martin

• Decision Date: 12 June 1969
• Docket Number: No. 7060,7060
• Citation: 442 S.W.2d 770
• Parties: HIGHLANDS UNDERWRITERS INSURANCE COMPANY, Appellant, v. Jessie D. MARTIN, Appellee. . Beaumont
• Court: Texas Court of Appeals

Page 770

442 S.W.2d 770

HIGHLANDS UNDERWRITERS INSURANCE COMPANY, Appellant, v. Jessie D. MARTIN, Appellee.

No. 7060.

Court of Civil Appeals of Texas.

Beaumont.

June 12, 1969.

Fuller, Fuller & McPherson, Port Arthur, for appellant.

Monte D. Lawlis, Jasper, for appellee.

KEITH, Justice.

The appeal is by the workmen's compensation insurance carrier from a judgment awarding the appellee judgment as and for total and permanent disability for injuries he received while in the course of his employment by Levingston Shipbuilding Company. The parties will be designated as they appeared in the trial court.

Plaintiff sustained his injury when he stepped into a hole in the deck of the ship upon which he was working, dropping about two or three feet therein, severely scraping the flesh from his left leg. He was examined by the first aid attendant at the shipyard and taken to the hospital in Orange for emergency treatment. The fact that plaintiff received an injury is not disputed, the real disagreement between the parties being whether or not the plaintiff also received an injury to his back. Plaintiff contends that he did in fact hurt his back, whereas the defendant asserts that the involvement of his back was either an afterthought or caused by the manner in which he walked after the injury, i.e., 'favoring' the injured leg. ¹

The accident occurred on March 9, 1967, and plaintiff filed his claim for compensation (dated March 24, 1967) with the Industrial Accident Board on March 27, 1967. The claim did not mention any injury to plaintiff's back, nor did plaintiff claim injury to his back when he was first treated by defendant's physician. Likewise, he failed to mention it to an orthopedic surgeon whom he consulted thereafter. The notes of the physician who testified in plaintiff's behalf did not show that plaintiff said anything about an injury to his back upon the first visit, although plaintiff claims that he told the doctor about such an injury.

The pleadings of the defendant consisted only of a general denial, a general pleading that the injuries were not severe and that the plaintiff had recovered therefrom; the present incapacity was due solely to prior diseases, infections, etc.; and, finally that the incapacity, if any, was temporary and not permanent, partial and not total. There was no pleading that the incapacity was confined to the plaintiff's left leg., i.e., a specific injury. ² This was an original answer filed more than a year before the commencement of the trial.

After all parties had rested and the evidence was closed, defendant sought leave to reopen the evidence for the purpose of introducing the claim for compensation which the plaintiff had filed with the Industrial Accident Board on March 27, 1967. No motion was made for leave to file a trial amendment seeking to confine plaintiff's recovery to a specific injury. The trial court denied defendant's motion for leave to reopen. The claim, however, is in our record as part of the defendant's bill of exception.

Upon this record, by the first two points, defendant contends that it was error for the trial court to deny defendant's motion to reopen the case for the purpose of introducing plaintiff's claim for compensation.

Rule 270, Texas Rules of Civil Procedure, governing the right to introduce additional testimony, is simple: 'At any time the court May permit additional evidence to be offered where it clearly appears to be necessary to the due administration of justice. * * *' ³ Defendant also recognizes that such a motion is addressed to the sound discretion of the trial court, as indeed it must. In Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471, 476 (1945) it is said:

'The right of a party after having rested his case to reopen it and introduce additional evidence is a question addressed to the sound discretion of the trial court.'

See also: McRoy v. Riverlake Country Club, Inc., 426 S.W.2d 299, 305 (Dallas Civ.App., 1968, error ref. n.r.e.); Hill v. Melton, 311 S.W.2d 496, 500 (Dallas Civ.App., 1958, error dism.); State v. Parkey, 295 S.W.2d 457, 462 (Waco Civ.App., 1956, error ref. n.r.e.); Stroud v. Temple Lumber Co., 284 S.W.2d 909, 913 (Beaumont Civ.App., 1955, error ref. n.r.e.); Ledbetter v. Martinez, 12 S.W.2d 1042, 1043 (Austin Civ.App., 1929, nor writ); 3 McDonald, Texas Civil Practice, § 11.24, p. 1023; 56 Tex.Jur.2d, Trial, § 122, p. 470.

Further, there must be a showing of diligence upon the part of the moving party in making such a request. In the early case of Cotton v. Jones, 37 Tex. 34 (1872), the defendant had neglected to offer into evidence the file marks upon the plaintiff's original petition so that he was unable to argue to the jury the fact that the suit had not been filed timely. The denial of his right to reopen for the purpose of introducing the file marks upon the very petition which had been read to the jury was upheld by the Supreme Court using these words:

'There should be a limitation, especially in civil cases, to the privilege of introducing testimony on either side, and the one established by the court in this case, is in accordance with reason, as well as the usual practice.'

See also: Collins v. Hall, 161 S.W.2d 311, 315 (Austin Civ.App., 1942, error ref., want of merit).

The receiving stamp of the defendant appearing upon the reverse side of the claim for compensation shows clearly that such claim had been received by the defendant on March 31, 1967, nearly eighteen months the beginning of the trial. Moreover, defendant had cross-examined both the plaintiff and his forensic medical expert as to the facts revealed by the claim itself, i.e., the lack of a complaint of an injury to the back. The defendant had examined its own medical witnesses extensively to show that the plaintiff did not assert a claim of injury to his back until about the time of the filing of the suit. Under these circumstances, therefore, the claim form itself would have been merely cumulative evidence of that which was already abundantly shown in the record then before the jury.

While it has been said (McRoy, supra, 426 S.W.2d at 305) that the rule permitting the reopening of the case for the receipt of additional evidence should be 'liberally exercised', it should also be borne in mind that the party seeking such privilege must first show that the additional testimony is 'necessary to the due administration of justice.' Rule 270. The decision of the trial court, exercising the discretion conferred by the rule, is final unless the complaining party can show an abuse thereof.

We have reviewed carefully the tendered evidence and the record as a whole to determine whether or not there was an abuse of discretion shown. In our opinion, the defendant has failed to show diligence, and, more importantly, has failed to show that the trial court did in fact abuse its discretion in this case. In Word v. United States Coffee & Tea Co., 324 S.W.2d 258 (Amarillo Civ.App., 1959, error ref . n.r.e.), there is a good discussion of the entire subject and therein we find this apt holding (at p. 262):

'The question of reopening a case for the purpose of admitting additional testimony is clearly within the sound discretion of the trial judge, and his action refusing to permit a party to reopen for such purpose should not be disturbed by an appellate court unless it clearly appears that such...