Reina v. General Acc. Fire and Life Assur. Corp., Ltd.
| Decision Date | 14 January 1981 |
| Docket Number | No. B-9344,B-9344 |
| Parties | Mary REINA, Petitioner, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Respondent. |
| Court | Texas Supreme Court |
Ronald R. Waldie, Dallas (amicus argued) Mark Smith, Lubbock, for petitioner.
Jackson, Walker, Winstead, Cantwell & Miller, Charles L. Babcock, Dallas, for respondent.
This is a workers' compensation case. Based on a jury verdict of total and permanent incapacity, the trial court rendered judgment against Defendant General Accident Fire and Life Assurance Corporation, Ltd. The Court of Civil Appeals reversed the judgment of the trial court. 597 S.W.2d 10. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.
The questions presented by this case are whether: (1) there is any evidence to support the submission of an issue on total and permanent incapacity, and (2) General Accident was denied its right of cross-examination by the exclusion of certain deposition testimony.
First, General Accident argues this Court does not have jurisdiction because the Court of Civil Appeals sustained an "insufficient evidence" point concerning the submission of an issue on total and permanent incapacity. We disagree.
The point states:
The trial court erred in submitting to the jury an issue on Appellee's alleged total and permanent incapacity as there was no evidence or insufficient evidence in the record which would support a jury verdict of total and permanent incapacity.
This is a "no evidence" point. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965). See Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 361 (1960).
Second, Ms. Reina argues that the Court of Civil Appeals erred in holding there was no evidence to support the submission of an issue on total and permanent incapacity. We agree with Ms. Reina.
To determine whether an issue should be submitted to the jury, we must apply the "no evidence" test. Garza v. Alviar, supra. In applying this test, we must consider only the evidence and reasonable inferences therefrom which viewed in its most favorable light supports Ms. Reina's contention that she is totally and permanently disabled, and we must reject all evidence and inferences to the contrary. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957); Garza v. Alviar, supra; Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977).
The evidence viewed in its most favorable light shows that on April 20, 1977, Ms. Reina picked up some wooden plaques, felt a sharp pain in her back and fell to the ground, injuring her foot, knee and back. She tried to go back to work after her injury but could not stand the pain in her back and side. Ms. Reina tried to work for another employer as a seamstress, but she could not do the work because standing up all day was too painful. She has applied for other jobs since her injury, but no one would hire her because she had a back injury. Ms. Reina testified that she could not perform labor at the time of the trial, that she has problems bending and stooping, and that she experiences continuous pain.
Dr. Howard Sigler testified that he would not pass Ms. Reina for a physical examination to go to work as an ordinary worker and that her "last examination did not reveal any essential improvement in her condition." In addition, two witnesses testified that Ms. Reina was previously a good housekeeper and a good worker, but because of her injury she was no longer able to perform these functions.
Proof of the duration and extent of a disability resulting from an injury is, like the assessment of damages in a personal injury action, at best an estimate which must be determined by a jury from all the pertinent facts before it. Texas Employers' Insurance Ass'n v. Washington, 437 S.W.2d 340 (Tex.Civ.App. Dallas 1969, writ ref'd n.r.e.); ...
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