Northwestern Nat. Ins. Co. v. Garcia

• Decision Date: 25 February 1987
• Docket Number: No. 08-86-00069-CV,08-86-00069-CV
• Citation: 729 S.W.2d 321
• Parties: NORTHWESTERN NATIONAL INSURANCE COMPANY, Appellant, v. Martha Cooper GARCIA, Appellee.
• Court: Texas Court of Appeals

Page 321

729 S.W.2d 321

NORTHWESTERN NATIONAL INSURANCE COMPANY, Appellant, v. Martha Cooper GARCIA, Appellee.

No. 08-86-00069-CV.

Court of Appeals of Texas El Paso.

Feb. 25, 1987.

Rehearing Denied April 1, 1987.

Jack Brewster, Brewster & Mayhall, El Paso, for appellant.

Mark F. Howell, El Paso, Russell Dunn, Sherman, for appellee.

Before OSBORN, C.J., and SCHULTE and FULLER, JJ.

OPINION

OSBORN, Chief Justice.

Northwestern National Insurance Company appeals from a judgment awarding Martha Garcia $96,715.56 in compensation benefits after a jury found her totally and permanently incapacitated as a result of accidental injuries sustained on March 19, 1980, and also found her totally and permanently incapacitated as a result of accidental injuries sustained on April 24, 1981. By nineteen points of error, the Appellant complains of evidentiary rulings, the court's charge, wage rate determination, sufficiency of the evidence and the entry of judgment. We affirm.

Facts

Martha Garcia worked for American Furniture Company from August, 1970, until July, 1981, as an invoice and inventory control clerk. On March 19, 1980, she was hit from behind by a china cabinet being moved on a dolly and twisted her right knee and back. The next day, she saw Dr. Barry King and she was off work for two weeks. On April 24, 1981, while working at a warehouse, she slipped on an oil slick and fell. She again saw Dr. King. She continued to work until July, 1981, when she resigned from her job. She saw Dr. Eduardo Hazarian twice in 1984 and again just before trial in October, 1985. He did a physical and neurological examination and made certain recommendations for further tests, but he never prescribed any treatment. She returned to work for another employer in July, 1985, as a part-time employee.

Juan Garcia, Appellee's husband, also testified as to her physical condition as a result of the accidents and as to his physical condition which had in part necessitated her return to work. Jesse Gutierrez, a clerk at American Furniture Company for sixteen years, confirmed the two accidents and testified about their effect on Mrs. Garcia's ability to continue working. The custodian of Dr. King's medical records testified for the purpose of identifying certain records that were offered in evidence from the doctor's office. Dr. Hazarian testified concerning his three examinations of Mrs. Garcia and stated his physical and neurological findings. It was his opinion that her injuries were incapacitating, that she could not resume any type of occupation and that she could not pass a physical examination for employment.

Verdict

The jury found that Mrs. Garcia sustained injuries on the two dates in question, that both were in the course of her employment and that the injury sustained in each accident was a producing cause of total and permanent incapacity. They also found that she incurred reasonable medical costs of $1,135.65 as a result of these injuries and that payment of compensation in weekly installments would result in manifest hardship and injury.

Wage Rate

The initial complaints are as to the trial court's entering judgment when there were no jury findings as to wage rate. Mrs. Garcia pled a wage rate of $152.31 at the time of both accidents. No issue on wage rate was submitted to the jury and there was no objection as to the failure to submit wage rate issues. After the verdict, Appellee, with leave of court, filed a trial amendment to allege an average daily wage of $30.60 at the time of the first accident and $28.80 at the time of the second accident. The amendment was to conform the pleadings to the evidence at trial based upon Mrs. Garcia's testimony as to her hourly rate and the hours she worked per week, including overtime. We find no error in allowing the trial amendment which was filed to make the pleading conform to the unobjected to evidence on wage rate. See: Tom's Toasted Peanuts, Inc. v. Doucette, 469 S.W.2d 399 (Tex.Civ.App.--Beaumont 1971, writ ref'd n.r.e.), and Myers v. Cliff Hyde Flying Service, Inc., 325 S.W.2d 841 (Tex.Civ.App.--Houston 1959, no writ). In the Doucette case, the trial court allowed an amendment to permit a damage recovery which the jury awarded in excess of the original pleadings. In Myers, the trial court denied a trial amendment to plead that a seller of an airplane agreed to keep it insured until the purchaser could obtain his own insurance. In each of these cases, one granting and one denying a trial amendment, the appellate court found no error. Both appellate courts obviously concluded that the trial court had wide discretion with regard to permitting the filing of a trial amendment. On two occasions, the Fort Worth Court of Appeals has held that it was an abuse of discretion to permit the granting of a trial amendment after a jury's verdict for the purpose of increasing the damages requested to meet the amount of damages found by the jury. Winn-Dixie Texas, Inc. v. Buck, 719 S.W.2d 251 (Tex.App.--Fort Worth 1986, no writ); Burk Royalty Company v. Walls, 596 S.W.2d 932 (Tex.Civ.App.--Fort Worth 1980), aff'd., 616 S.W.2d 911 (Tex.1981). In the case at bar, there were no jury findings on wage rate, but judgment was entered based upon the amended pleading. We conclude that the trial court had discretion to permit the filing of the trial amendment to make the pleadings conform to the evidence. Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942).

Where the court has submitted one or more of the issues necessary to sustain a ground of recovery and omitted one or more other necessary issues and no objection is made, such omitted issue shall be deemed as found by the court in such manner as to support the judgment. Rule 279, Tex.R.Civ.P.; Wilson v. Remmel Cattle Co. Inc., 542 S.W.2d 938 (Tex.Civ.App.--Amarillo 1976, writ ref'd n.r.e.). This rule applies with regard to wage rate issues in a workers' compensation case. Charter Oak Fire Insurance Company v. Barrett, 655 S.W.2d 333 (Tex.App.--San Antonio 1983, no writ); Bituminous Casualty Company v. Whitaker, 356 S.W.2d 835 (Tex.Civ.App.--Eastland 1962, no writ). Points of Error Nos. One and Two are overruled.

Medical Evidence

The next three points of error complain about admitting medical records and testimony and a finding on a medical bill. Appellant asserts medical records, letters and written reports by Dr. King were inadmissible. Clearly, letters written for purpose of advising as to a doctor's findings on examination and evaluation of a patient are hearsay. Rule 801(d), Tex.R.Evid., defines hearsay as including a statement, other than one made while testifying at the trial, which is offered to prove the truth of the matter asserted. Certainly the prior written letters were not statements made while testifying at the trial. Appellee argues that the records were admissible under Rule 803(4), Tex.R.Evid. That provision makes admissible the history the patient gave the doctor, it does not make admissible letters with a diagnosis based upon that history. But, the Appellant did not bring the exhibit with the medical records, letters and reports to this Court with the record from the trial court. Without knowing the content of the records, we cannot determine if they were admissible as business records or if any harm resulted from their being admitted into evidence. Hinsley v. Continental Trailways Bus System, 302 S.W.2d 668 (Tex.Civ.App.--Galveston 1957, no writ).

The complaint about Dr. Hazarian testifying when he never treated the patient is not valid. Prior to 1977, a doctor who only examined but did not treat could not testify as to an opinion based in part upon the history of the case as related by the patient. Since the decision in Slaughter v. Abilene State School, 561 S.W.2d 789 (Tex.1977), a nontreating doctor may base his findings and prognosis upon the history related by the patient and his physical examination and x-ray findings. The cases relied upon by Appellant were all decided prior to the Slaughter case. Points of Error Nos. Three and Four are overruled.

Point of Error No. Five concerning the bill of Dr. Hazarian has not been briefed and the point is waived. Rule 74(f), Tex.R.App.P.; Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.).

Injurious Practice

The next complaint concerns the trial court's failure to submit requested issues as to the plaintiff's injurious practice. The defendant requested Special Issues 1 through 5 inquiring concerning a failure of the plaintiff to reduce her weight. There was testimony that she was overweight and that the treating doctor had recommended a loss of weight. Rule 279, Tex.R.Civ.P., provides that a failure to submit an issue shall not be deemed a ground for reversal of a judgment unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment. The requested issues are not substantially correct because four of the five have blanks that were never completed. In addition, the issues did not inquire if the plaintiff's failure to lose weight was willful, which is a required element of the injurious practice defense. Austin Independent School District v. Maynard, 711 S.W.2d 377 (Tex.App.--Austin 1986, no writ). Also, the record does not reflect that the requested issues were ever tendered. Although they contained a signature line for the judge to indicate that the issues were refused, there is no signature. See: Hess v. American States Insurance Company, 589 S.W.2d 548 (Tex.Civ.App.--Amarillo 1979, no writ). Point of Error No. Six is overruled.

Subsequent Injury

Appellant's next point of error asserts the trial court erred in submitting issues as to two separate injuries and not submitting the case on the basis of the second injury. The application of Article 8306, sec. 12c, Tex.Rev.Civ.Stat.Ann., has caused considerable difficulty for both the bench...