Security Ins. Co. v. Nasser
| Decision Date | 07 July 1988 |
| Docket Number | No. B14-85-000257-CV,B14-85-000257-CV |
| Citation | 755 S.W.2d 186 |
| Parties | SECURITY INSURANCE COMPANY, Appellant, v. Izzat NASSER, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
W. Richard Ellis, III, Houston, for appellant.
Stevens F. Mafrige, Houston, for appellee.
Before PAUL PRESSLER, MURPHY and DRAUGHN, JJ.
This workers compensation case involving a worker, who was assaulted on the job by a third party, is before us on remand from the Supreme Court. Nasser v. Security Insurance Company, 724 S.W.2d 17. We previously reversed the judgment of the trial court and rendered judgment that the appellee-worker take nothing because his injury was not sustained in the course of his employment. Rather, we held that the worker's injury fell within the third party "personal-animosity" exception of the Workers Compensation Act. Tex.Rev.Civ.Stat.Ann art. 8309 § 1(2) (Vernon 1967); Security Insurance Co. v. Nasser, 704 S.W.2d 390, 391. The Supreme Court found to the contrary and held that this exception does not apply because the assault was incidental to some duty of his employment and the jury's verdict incorporated a finding that the third-party assaultor was mentally incapable of entertaining a rational intent to assault the worker. 724 S.W.2d at 19. We must now review factual sufficiency and other points not addressed by our original opinion. Before doing so, we will, for clarity and to provide a proper setting, detail again the pertinent factual background.
Appellee, Izzat Nasser, worked as the manager of a Hamburgers By Gourmet outlet. During this time he became acquainted with Marianne Dawes. Dawes worked nearby and visited the restaurant two to three times daily. During her visits, appellee would sit and talk with her. Although appellee and Dawes did go out on one date, they both claimed that there was no romantic involvement between them.
In the course of their discussions, Dawes revealed that she had a boyfriend, Victor Daryoush, whom she had dated for a number of years. She also explained that they were involved in an automobile accident in which Daryoush received a head injury. After the accident he began to experience hallucinations, was diagnosed as psychotic and schizophrenic, and was in and out of mental institutions.
One evening Daryoush came into the Hamburgers By Gourmet managed by appellee. He purchased a Coke and then left for about thirty minutes. He returned, approached the counter where appellee was working, and said that he wanted to talk with him right away. Appellee immediately suspected that this might be Dawes' boyfriend and was concerned that he might be dangerous. In an effort to avoid any confrontation, he turned to another female customer and told Daryoush that she was his girlfriend and that he was busy talking to her. Hearing this, Daryoush walked away from the counter.
After attending to his customers, appellee went to his office at the back of the restaurant. Some time later one of his employees came to his office and told him that someone wanted to see him. As soon as appellee walked out of his office, Daryoush attacked him with a knife, stabbing him twice in the stomach. These injuries formed the basis of the jury verdict on which the trial court rendered judgment in favor of the appellee-worker.
Appellant's first four points of error are addressed to evidentiary concerns directed at Special Issue No. 1, concerning whether appellee was injured in the course of his employment. Three of these points of error are specifically directed to the instruction accompanying that issue which defined "injury in the course of employment" and the third-party personal animosity exception, along with its limitation. The fourth point of error challenges the form of Special Issue No. 1 as submitted. Appellant's remaining six points of error concern the admissibility of certain evidence and improper jury argument. We will address those issues not disposed of by the Supreme Court's opinion.
Since these first four points of error are directed at Special Issue No. 1 and its accompanying instruction, we now set it out as submitted to the jury:
Special Issue # 1
Do you find from a preponderance of the evidence, that Izzat Nasser was injured in the course of his employment on or about February 20, 1981?
ANSWER ("We do." or "We do not.")
Appellant, in his first and third points of error, asserts there was no evidence or insufficient evidence to support the jury's answer to this issue. The Supreme Court disposed of the no evidence point by holding there was some evidence to support the jury's answer to the issue. While the Supreme Court's opinion spoke with finality as to the injury being in the course of employment, and as to the inapplicability of the "personal animosity" exception, we do not read the opinion as precluding our review of the appellant's sufficiency of the evidence point regarding this issue. The Court's concluding sentence of that opinion buttresses our interpretation in that it remands the case to us "for consideration of factual sufficiency points" not addressed by us in accordance with Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); 724 S.W.2d at 19. We now proceed to do so.
In his first and third points of error, appellant essentially contends the trial court erred in denying its motion for instructed verdict and its motion for judgment N.O.V. because there was insufficient evidence to support Special Issue No. I, and the jury's affirmative answer thereto. In short, appellee contends there was insufficient evidence that appellee was injured in the course of his employment.
In addressing this issue, we do not now, nor did we in our original opinion, question the fact that appellee was injured in the course of his employment--unless the so-called "personal animosity" exception was applicable. In this regard, the undisputed evidence shows that Appellee (Nasser) was at work in his office and was stabbed by Daryoush when he came out of the office after being told that someone wanted to see him. As assistant manager, he was instructed to talk to customers and he reasonably assumed a customer wanted to see him. If we isolate the circumstances of the assault, he was obviously injured while carrying out a duty of his employment. We cannot, however, review such injury circumstances in a vacuum where the evidence raises the personal animosity exception. Personal animosity cases almost always occur when the employee is working on the job. The only disputed question here is whether the personal animosity exception applied to remove the injury from the "course of employment" as that term is defined by law. That exception, contained in Article 8309 Sec. 1 of the Workers Compensation act, provides:
[T]he term "injury sustained in the course of employment," as used in this Act, shall not include:
(2) An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.
The real question in issue here was, and is, does the personal animosity exception apply under the facts of this case? Appellant asserts that it clearly does and appellee argues that the "rational intent" exception makes it inapplicable. A finding that the assaultor is mentally incapable of forming a rational intent or was incapable of rational reasoning removes the personal animosity exception. Petroleum Casualty Co. v. Kincaid, 93 S.W.2d 499, 501 (Tex.Civ.App.--Eastland 1936, writ dism'd).
The Supreme Court in remanding this case gave two reasons why the personal animosity exception was inapplicable to deny compensation in this case: First, the assault was incidental to some duty of Nasser's employment and therefore the injuries he suffered arouse out of the employment; second, the jury's answer to Special Issue No. 1 incorporated a finding that the assaulting party, Daryoush, was "incapable of entertaining a rational intent or was incapable of rational reasoning". As previously stated, while the Supreme Court's opinion is expressed in a tone of finality with regard to its findings, we assume that the Court simply found that there was some probative evidence to support these two grounds. Our constitutional duty then is to determine on remand whether the evidence supporting these two findings was factually insufficient, or so against the great weight and preponderance of the evidence as to be manifestly unjust. Our review of the evidence, under the standard laid down by the Supreme Court in its opinion, convinces us that the evidence is sufficient to support the jury's answer to Special Issue No. 1.
The Supreme Court has mandated that we should consider the factual sufficiency points in accordance with Pool v. Ford Motor, 715 S.W.2d 629. Pool requires that we examine and state in detail the evidence relevant to the issue when reversing on insufficiency grounds. 715 S.W.2d at 635. Since we are not reversing on these grounds, we presume that such a detailed statement of the evidence is...
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