Texas Emp. Ins. Ass'n v. Beard, 16618

• Decision Date: 16 April 1965
• Docket Number: No. 16618,16618
• Citation: 390 S.W.2d 59
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Herman BEARD, Sr., Appellee.
• Court: Texas Court of Appeals

Page 59

390 S.W.2d 59

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Herman BEARD, Sr., Appellee.

No. 16618.

Court of Civil Appeals of Texas, Fort Worth.

April 16, 1965.

Rehearing Denied May 14, 1965.

Nelson & Sherrod and Stan Carter, Wichita Falls, for appellant.

Peery, Wilson & Jameson and Don B. Morgan, Wichita Falls, for appellee.

LANGDON, Justice.

This is a Workmen's Compensation case for general disability. The jury found total temporary disability of seven weeks, followed by permanent partial disability.

The appellant, by its first three points, contends the court erred in submitting special issue No. 17 inquiring as to whether '* * * Plaintiff's incapacity to labor, if any, is not caused solely by a pre-existing sacrolized vertebra, and arthritic condition, a calcified artery or a combination thereof independent of and wholly disassociated from the injury of August 7, 1963', because it made no distinction as to whether the incapacity inquired about related to the past or to the future, and in refusing its two requested issues which did make such distinction.

'* * * it is the settled law of this state that liability for damages for personal injury cannot be avoided by merely showing that the person injured was not a well person at the time of injury. * * * where injury is sustained by an employee in the course of his employment which results in his disability within the meaning of our Compensation Law, compensation therefor will not be denied, notwithstanding said injury is aggravated or enhanced by the effect of diseases existing at the time, or afterwards occurring.' Commercial Standard Ins. Co. v. Noack, 62 S.W.2d 72 (Tex.Com.App., 1933, approved by Sup.Ct.); Armour & Co. v. Tomlin, 60 S.W.2d 204 (Tex.Com.App., 1933).

In order for a prior or existing disease, impairment or condition to constitute a defense to a claim for compensation it must be established that such prior or existing disease, impairment or condition or some combination thereof standing alone is the sole cause of the incapacity. Otherwise stated, it must be shown that such prior or existing disease, impairment or condition or combination thereof is disassociated or disconnected with and not aggravated by the injury or incapacity upon which the claim for compensation is based.

The appellant Insurance Company must plead such matter as a sole cause defense and secure favorable findings thereon. The burden of proving the negative of the sole cause issue is upon the claimant.

The issue in question was couched in language which properly placed the burden upon the claimant. In considering the issue and its answer thereto the jury was confronted with every specific infirmity, disease, impaired physical condition or any combination thereof which were supported by the record.

The issue submitted by the court fairly presented the ultimate question and accorded to the appellant the rights to which it was entitled. Liberty Universal Insurance Company v. Burrell, 386 S.W.2d 323 (Fort Worth Tex.Civ.App., 1965, application for writ pending); Texas Employers' Insurance Association v. Ham, 333 S.W.2d 438 (Fort Worth Tex.Civ.App., 1960, ref., n. r. e.), and cases cited therein; Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356, 357.

We find no impropriety in the court's refusal of the two issues requested by appellant.

The appellant's points four through eight are directed at specific portions of jury argument permitted over objection, and point nine asserts that the argument as a whole was so prejudicial that...