St. Paul Fire & Marine Ins. Co. v. Murphree

• Citation: 347 S.W.2d 817
• Decision Date: 22 May 1961
• Docket Number: No. 7056,7056
• Parties: ST. PAUL FIRE & MARINE INS. CO., Appellant, v. J. T. MURPHREE, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 817

347 S.W.2d 817

ST. PAUL FIRE & MARINE INS. CO., Appellant, v. J. T. MURPHREE, Appellee.

No. 7056.

Court of Civil Appeals of Texas, Amarillo.

May 22, 1961.

Rehearing Denied June 19, 1961.

Crenshaw, Dupree & Milam, Lubbock, for appellant.

Splawn & Maner, Lubbock, for appellee.

DENTON, Chief Justice.

This is an appeal from a judgment in favor of the appellee, J. T. Murphree, against appellant insurance carrier in a workmen's compensation suit. Murphree alleged he was injured in the low back while in the course of his employment on April 30, 1959, and that as a result of such injury he became totally and permanently disabled. He alleged in the alternative that this injury of April 30, 1959, aggravated prior existing injuries and that, as a result of the April injury and the re-injury and aggravation, he became totally and permanently disabled.

In answer to appellee's amended petition, the insurance carrier generally denied the allegations, and further pleaded that both before and after the claimant's alleged injury of April, 1959, he sustained bodily injuries which constituted the sole cause of any incapacity he may have had as a result of the April, 1959, injury.

In response to the special issues submitted, the jury found Murphree sustained an accidental personal injury on April 30, 1959; that such injury was sustained while he was an employee of Meadow Implement Company; and that it was received in the course of that employment. The jury further determined the April, 1959 injury caused total and permanent incapacity beginning on the date of that injury. The jury found that a combination of three prior injuries and two subsequent injuries was not the sole cause of Murphree's incapacity. However, they did find the following injuries did contribute to Murphree's incapacity to the extent indicated: the 1951 injury contributed 25 per cent; the June 28, 1959, injury contributed 25 per cent; the July 15, 1959, injury contributed 25 per cent; the July 20, 1959, injury did not contribute to the incapacity; and the September 1, 1959, injury contributed 5 per cent. Upon motion by appellee, the trial court disregarded the jury's answers to Special Issues Nos. 21 and 22 by which it found the June 28, 1957 injury contributed 25 per cent to Murphree's incapacity, and entered judgment for appellee for total and permanent disability less 55 per cent contribution for the named prior and subsequent injuries received by Murphree.

Appellant's first group of points of error deal with the trial court's granting of appellee's motion to instruct counsel for appellant not to refer to any prior or subsequent amounts of settlements or claims that appellee may have made. Appellant's pleaded defenses included general allegations of prior and subsequent personal injuries that contributed to Murphree's incapacity. No specific injuries or dates those injuries were received were alleged. The trial court's ruling in effect prohibited appellant from introducing evidence pertaining to claims, settlements or payments arising out of any previous or subsequent injuries suffered by Murphree. This ruling did not exclude evidence or cross examination concerning these injuries themselves.

Appellant argues that the trial court's ruling limited its right of cross examination; deprived it of showing inconsistent claims by claimant; denied it the right to show certain admissions by the claimant; contends that the trial court's order was broader than the appellee's motion; and that its inability to introduce appellee's pleadings in other workmen's compensation cases deprived it of competent impeachment evidence. The validity of these contentions is determined by both the rules of evidence and the effect of Article 8306, Sec. 12c, Vernon's Rev.Civ.St.

As we understand appellant's position, it contends that pleadings in other cases involving Murphree's other injuries, the notices of injuries, and claims for compensation and compromise settlements dealing with these injuries should have been admitted into evidence, and that it should have been permitted to cross examine Murphree concerning these transactions. Although the trial court did not permit appellant to introduce these pleadings, settlements, etc., appellant was allowed to cross examine Murphree rather extensively about these prior injuries, including the times they occurred, circumstances concerning his employment, and the details of the injuries themselves.

It is well settled that an insurer, under the terms of Sec. 12c, Art. 8306, may plead and prove prior personal injuries. In order for insurance carriers to avail themselves of prior injuries as a defense, it is necessary for the jury to first determine whether the previous injury contributed to the incapacity and if so, to what extent. Texas Indemnity Ins. Co. v. Perdue, Tex.Civ.App., 64 S.W.2d 386 (writ refused); Traders & Gen. Ins. Co. v. Watson, Tex.Civ.App., 131 S.W.2d 1103 (writ dismissed); Texas Employers' Ins. Ass'n v. Wright, Tex.Civ.App., 196 S.W.2d 837 (n. r. e.). In the instant case the trial court submitted these issues correctly, and the jury determined that three prior injuries and one subsequent injury contributed 80 per cent to the claimant's incapacity. Having interrogated Murphree about all these other claims and injuries and having had the jury determine that these injuries did contribute to the claimant's incapacity, we fail to see how appellant was prejudiced by the trial court's granting the claimant's motion to restrict the evidence as indicated.

This same question was presented in Brinkley v. Liberty Mutual Ins. Co., Tex.Civ.App., 331 S.W.2d 423 (no writ history). The court there held that under the plain terms of Sec. 12c, it was error for the trial court to admit for jury consideration evidence of claims, settlements and payments arising out of the employees' previous injuries. The Texarkana court there reasoned that the language of Sec. 12c makes no reference to previous claims, settlements or payments and that therefore they should be excluded form the jury's consideration. We agree with the court's reasoning and the result reached. In addition we believe that to admit such evidence the danger of unfairly prejudicing the claim of a litigant out-weighs the probative value of such evidence. L. B. Price Mercantile Co. v. Moore, Tex.Civ.App., 263 S.W. 657; National Compress Co. v. Hamlin, 114 Tex. 375, 269 S.W. 1024 (no writ history); San Antonio Traction Co. v. Cox, Tex.Civ.App., 184 S.W. 722 (no writ history). See also McCormick & Ray, Texas Law of Evidence, Vol. 2, Sec. 1526, page 375. We therefore overrule appellant's points of error Nos. 1 through 6.

Appellant also urges that the jury's answer to Special Issue No. 28, finding the September, 1959 injury contributed 5 per cent to the incapacity of appellee is manifestly contrary to and unsupported by the evidence. Appellant further contends the jury could only make this finding because appellant was not allowed to introduce the pleadings, the evidence of the settlement and operation connected with the September injury. We think this latter contention has already been disposed of in our discussion of the points of error above.

In regard to the sufficiency of the evidence to support the jury's answer complained of, it seems appellant finds itself in an inconsistent position. It does not complain of the jury's findings relative to the contributions of the other previous injuries, nor does it complain of the fact the jury found the September injury contributed to appellee's incapacity, but only complains of the finding of the small contribution of the September injury.

The extent and nature of the September injury was in evidence before the jury, and appellant's cross examination of appellee included a discussion of the operation and the extent of the injury. The nature and extent of the September injury was fully before the jury. The seriousness of any injury is a question of fact to be determined by the trier of the facts. Here the jury decided that the September injury did contribute to the appellee's incapacity, but that the contribution was only 5 per cent. The fundamental principle of an appellate court's review is that the record must be weighed in the light most favorably in support of the trial court's judgment and the jury verdict. Under the facts and circumstances of the instant case together with the presumption referred to, we conclude the jury was warranted in answering Special Issue No. 28 as they did. After considering all of the evidence, we are of the opinion the jury finding complained of is not against the great weight and preponderance of the evidence.

In answer to Special Issues Nos. 21 and 22, the jury found the June, 1957 injury contributed to appellee's incapacity to the extent of 25 per cent. In entering judgment on the verdict, the trial court disregarded and set aside the jury's findings on these two issues on the ground the injury referred to was not compensable. It is undisputed that the June, 1957 injury was non-compensable due to the fact it was received while appellee was engaged in farming activities. Thus the question presented is whether a prior injury referred to in Sec. 12c, Art. 8306 must be a compensable injury in order for the insurer to have the benefit of it as a partial defense...