Stiles v. Royal Ins. Co. of America

• Decision Date: 31 August 1990
• Docket Number: No. 05-89-01409-CV,05-89-01409-CV
• Citation: 798 S.W.2d 591
• Parties: Terry STILES, Appellant, v. ROYAL INSURANCE COMPANY OF AMERICA, Appellee.
• Court: Texas Court of Appeals

Page 591

798 S.W.2d 591

Terry STILES, Appellant, v. ROYAL INSURANCE COMPANY OF AMERICA, Appellee.

No. 05-89-01409-CV.

Court of Appeals of Texas Dallas.

Aug. 31, 1990.

Rehearing Denied Nov. 13, 1990.

Dena M. Kashiwamura, Dallas, for appellant.

Sharis L. Jinks, Dallas, for appellee.

Before ENOCH, C.J., and BILL J. STEPHENS ¹ and EARL W. SMITH ², JJ. (Retired Sitting by Assignment).

OPINION

BILL J. STEPHENS, Retired Justice.

Terry Stiles, appellant, appeals from an adverse judgment rendered by the trial court after a jury trial in which the jury failed to find that Stiles had received an injury on or about August 6, 1987, as a result of a strain or overexertion in the course of his employment. Stiles brings four points of error. The first two points of error complain that the trial court erred in overruling his motion for new trial because the jury's verdict was contrary to the legally conclusive evidence, or in the alternative, the jury's verdict was against the great weight and preponderance of the evidence. Point of error number three contends that the trial court erred in excluding the testimony of Dr. Belvin Simmons, and point of error number four argues that the trial court erred in denying both his motion and his amended motion for continuance. We affirm the trial court's judgment.

FACTS

Terry Stiles worked for Hallman & Hasse Enterprises as a manager/assistant manager for Jim's Pizza Parlors. According to Stiles, on Thursday August 6, 1987, he went to work between 10:30 and 11:00 a.m. He took the chairs down from the tables, counted the money and put it in the cash register, and began his preparation work in the kitchen. First he cut and ground three cases of cheese, weighing about 40 to 52 pounds each. He finished this work about 1:00 p.m. and then until 2:30 p.m. he was lifting, bending, and stooping. Part of his job was to shuffle or rotate the dough which entails taking a long tray of dough out of a rack with one hand and placing it on another rack, while simultaneously taking another tray out and moving it. The temperature in the kitchen where this type of work was performed was 105 to 110 degrees. While Stiles was shuffling the dough, he began having intense chest pains. He stopped working, sat down at a table and laid his head on his arm to rest, where he remained for 15 to 20 minutes. He was profusely sweating, to the extent that his shirt and pants were saturated and dripping on the floor. He believed that he was having a heart attack. The delivery man came in the dining room and asked Stiles if he needed an ambulance. The pain continued and spread to his left armpit. His relief came to work early and Stiles went home where he spent the rest of the evening watching television. He was unable to sleep because of the discomfort in his left arm. On Friday, Stiles was due at work late in the afternoon and he tried to sleep in the morning but was unable to do so.

By the time he got off work Friday night, his left hand and arm were so bad that he had to use his right hand to place his left hand in his pocket. He still could not sleep Friday night. At 5:00 a.m. Saturday morning, Stiles accompanied his wife to the store where she worked. On arriving, Stiles made coffee, drank two sips, and felt like someone had hit him in the chest with a sledge hammer. He does not remember driving home from his wife's work place; he just remembers lying on the water bed at home. The next thing Stiles remembers is seeing the nurse's station at the hospital.

POINTS OF ERROR NUMBERS ONE AND TWO

Stiles' first point of error contends that the trial court erred in overruling his motion for new trial because the jury's verdict was contrary to the legally conclusive evidence, and the second point of error contends that the verdict was against the great weight and preponderance of the evidence. Under Texas law, when legal and factual insufficiency points are raised, the courts should rule on the legal insufficiency point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); Tom Benson Chevrolet, Inc. v. Alvarado, 636 S.W.2d 815, 819 (Tex.App.--San Antonio 1982, writ ref'd n.r.e.). This Court, in deciding a challenge to the legal sufficiency of the evidence, must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Stedman v. Georgetown Sav. and Loan Ass'n, 595 S.W.2d 486, 488 (Tex.1979). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). Stiles argues in his first point of error that the jury's verdict is contrary to the legally conclusive evidence that his heart attack was work related. When the complaining party bears the burden of proof on an issue and this issue is answered adversely, the point of error is styled as a "matter of law" point, because the fact finder's failure to find a fact need not be supported by the evidence. Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 TEX.B.J. 439, 440 (1983). The initial review of a "matter of law" point is the same as that required by a "no evidence" point. However, in addition to finding no probative evidence to support the jury finding, the court must also find that the contrary to the finding is established as a matter of law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982).

In his second point of error Stiles argues that the jury's verdict is against the great weight and preponderance of the evidence. In reviewing a complaint that the jury's verdict is against the great weight and preponderance of the evidence, the court will consider all of the evidence in the record that is relevant to the fact being challenged. The court may set aside the verdict only if it is so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We may not substitute our judgment for that of the trier of fact. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, writ ref'd n.r.e.); Kirby v. Cruce, 688 S.W.2d 161, 167 (Tex.App.--Dallas 1985, writ ref'd n.r.e.). Thus, although the evidence is conflicting, the jury's verdict will be left undisturbed. Ellsworth v. Bishop Jewelry and Loan Co., 742 S.W.2d 533, 535 (Tex.App.--Dallas 1987, writ denied).

We note from the outset that at trial Stiles offered no medical testimony, only his testimony as to the causal connection of his heart attack. Our courts have recognized that in heart attack cases, a doctor's testimony that the attack was caused by exertion should be presented to determine the issue of causation. Aetna Cas. & Sur. Co. v. Scruggs, 413 S.W.2d 416, 424 (Tex.Civ.App.--Corpus Christi 1967, no writ). Furthermore, medical testimony is ordinarily relied upon to determine the causal connection between the plaintiff's activities and the heart attack. See Commercial Standard Ins. Co. v. Curry, 460 S.W.2d 464, 467-68 (Tex.Civ.App.--Houston [1st Dist.] 1970, writ ref'd n.r.e.).

The evidence reveals that Stiles had been engaged in the same job activities during his term of employment at the pizza parlor; that his family had a history of heart problems; that his father had died of a massive heart attack at age 46; that Stiles was 5 feet 8 inches tall, weighed 225 pounds, and smoked two packs of cigarettes a day; and that he had had no physical examination for the past ten years. Absent medical testimony, the jury was unconvinced that Stiles' work activity was the producing cause of his heart attack.

Stiles' first and second points of error are overruled.

POINT OF ERROR NUMBER THREE

In his third point of error, Stiles contends that the trial court erred in excluding the testimony of Dr. Belvin A. Simmons. Although Dr. Simmons had examined Stiles prior to trial, he was not Stiles' treating physician. In answer to interrogatories propounded to Stiles before he was seen by Dr. Simmons, Stiles had not named Dr. Simmons as a treating physician. He had, at the time of the answer to the interrogatories, stated that he would call "any other physician who has or will examine or treat" him. After being treated by Dr. Simmons, Stiles failed to supplement his answers to the interrogatories and to name Dr. Simmons.

Stiles contends that he was unexpectedly called to trial in this case, that he was unable to subpoena his treating physician, Dr. Hadad, and that since defendant had been furnished with a copy of Dr. Simmons' examination of Stiles, no surprise existed; and therefore the testimony of Dr. Simmons should have been admitted. The trial court declined to admit Dr. Simmons' testimony.

Rule 215(5) of the Texas Rules of Civil Procedure provides:

Rule 215. Abuse of Discovery; Sanctions

5. Failure to Respond to or Supplement Discovery. A party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record.

TEX.R.CIV.P. 215(5).

The sanction provided by rule 215(5) is automatic unless good cause is shown. E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987); Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691, 694 (Tex.1987); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex.1986). The purpose of the rule is to insure compliance with the discovery rules, prevent needless delays, and, most notably, deter future violations by litigants. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct....