Texas Employers Ins. Ass'n v. Duree

• Decision Date: 31 October 1990
• Docket Number: No. 2-88-267-CV,2-88-267-CV
• Citation: 798 S.W.2d 406
• Parties: TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Morris Arden DUREE, Appellee.
• Court: Texas Court of Appeals

Page 406

798 S.W.2d 406

TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Morris Arden DUREE, Appellee.

No. 2-88-267-CV.

Court of Appeals of Texas,

Fort Worth.

Oct. 31, 1990.

Camp, Jones, O'Neill, Hall & Bates and James W. Watson and Michael W. Minton, Fort Worth, for appellant.

Brockermeyer & Associates and Greg Fitzgerald, Fort Worth, for appellee.

Before the court en banc.

OPINION ON MOTION FOR REHEARING

JOE SPURLOCK, II, Justice.

To our previous opinion, appellant filed a Motion for Rehearing. We have considered en banc the motion and our previous opinion. We withdraw the opinion and judgment, overrule the Motion for Rehearing, and substitute this opinion and judgment.

We affirm the judgment.

In this case of first impression, one issue is whether physical manifestations of a hernia (the appearance of a lump) ten days after an injury can constitute a "sudden and immediate" appearance of the hernia, so as to make it compensable under section 12b, article 8306 of the Worker's Compensation Act. A related question is whether the trial court erred in instructing the jury on "suddenly and immediately." The carrier, Texas Employers Insurance Association (TEIA), argues that the appearance of the lump ten days after the injury is not "sudden and immediate" and that the trial court as a matter of law improperly instructed the jury on those terms. We disagree.

Appellee, Morris Arden Duree, an employee on the assembly line at General Motors in Arlington, Texas, on December 18, 1987, was injured while installing a station wagon taillight. As Duree was pushing the taillight into place, he experienced a sharp stinging pain in his lower groin. He did not notice any lump in his lower groin area on the date of the accident, but did experience some discomfort for several days after the injury and complained to his supervisor. On December 28, 1987, while buckling a seat belt, he felt a lump move in his lower lap. Duree went to a physician at the General Motors plant medical office on January 15, 1988, and was told he had a hernia. Thereafter, Duree underwent surgery to repair the hernia.

Duree filed suit against appellant, TEIA, to recover worker's compensation benefits for an inguinal hernia. At trial Duree put on his case-in-chief. After he rested, TEIA made an oral motion for directed verdict asserting that Duree had not introduced any evidence showing that the hernia appeared "suddenly and immediately" as required under TEX.CIV.STAT.ANN. art. 8306, sec. 12b (Vernon 1967). This motion was overruled. TEIA again urged the same motion during jury deliberations, and the court again overruled it. The jury subsequently found Duree sustained an injury in the course and scope of his employment which resulted in a hernia. The trial court entered judgment for appellee in the amount of $6,063.75. From this judgment, TEIA appeals.

Article 8306, section 12b of the Worker's Compensation Act provides, in part:

In all claims for hernia resulting from injury sustained in the course of employment, it must be definitely proven to the satisfaction of the Board:

1. That there was an injury resulting in hernia.

2. That the hernia appeared suddenly and immediately following the injury.

3. That the hernia did not exist in any degree prior to the injury for which compensation is claimed.

4. That the injury was accompanied by pain.

TEX.REV.CIV.STAT.ANN. art. 8306, sec. 12b (Vernon 1967).

In its first point of error, appellant asserts that the trial court erred in refusing to grant its motion for directed verdict, because Duree failed to introduce any evidence showing that the hernia appeared "suddenly and immediately" as required under article 8306, section 12b.

A directed verdict under TEX.R.CIV.P. 268 is proper only under limited circumstances, e.g.: where (1) a defect (specifically indicated) in the opponent's pleading makes it insufficient to support a judgment; or (2) the evidence proves conclusively the truth of fact propositions which, under the substantive law, establish the right of the movant, or negate the right of his opponent, to judgment; or (3) the evidence is insufficient to raise an issue of fact as to one or more fact propositions which must be established for the opponent to be entitled to judgment. Rowland v. City of Corpus Christi, 620 S.W.2d 930, 932-33 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.); Ottis v. Haas, 569 S.W.2d 508, 512 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).

Under either (2) or (3) above, a trial court may properly withdraw a case from the jury and instruct a verdict only if there is no evidence to support a material issue. Porterfield v. Brinegar, 719 S.W.2d 558, 559 (Tex.1986). In the instant case, if the record reveals any conflicting evidence of a probative nature sufficient to raise a fact issue regarding whether plaintiff's injury was "sudden and immediate," an instructed verdict would have been improper. Instead, a determination of that issue must be left to the jury. See White v. Southwestern Bell Tel. Co. Inc., 651 S.W.2d 260, 262 (Tex.1983); Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex.1982).

Appellant argues it was entitled to a directed verdict because there was no evidence introduced by appellee of a "sudden and immediate" protrusion, as is necessary under article 8306, section 12b. Appellant relies on Great American Indemnity Co. v. Gravell, 297 S.W.2d 371 (Tex.Civ.App.--San Antonio 1956, no writ), wherein an employee's discovery of a lump the same day the accident occurred constituted a sudden and immediate appearance of a hernia under article 8306, section 12b. In two additional cases cited by TEIA, the appearance of a lump two or three months after the accident date did not constitute a "sudden and immediate" appearance of a hernia compensable under the statute. Texas Employers Insurance Ass'n. v. Brantley, 394 S.W.2d 824 (Tex.Civ.App.--El Paso), rev'd on other grounds, 402 S.W.2d 140 (Tex.1966); Travelers Ins. Co. v. Quibedeaux, 403 S.W.2d 826, 827 (Tex.Civ.App.--Beaumont 1966, writ ref'd n.r.e.). Specifically, TEIA argues that, as a matter of law, the language of article 8306, section 12b and these cases establish that the appearance of a lump ten days following an injury is not "sudden and immediate." Additionally, it contends there was no other evidence offered to prove the "sudden and immediate" appearance of the hernia following Duree's injury. Therefore, TEIA argues the trial court erred in not granting its motion for directed verdict.

We hold the trial court properly overruled appellant's motion for directed verdict because, in light of the facts presented at trial, the appearance of a lump ten days following an injury may be a "sudden and immediate" appearance of the hernia. Moreover, TEIA's interpretation of section 12b, article 8306 that such an appearance "could not be sudden and immediate as a matter of law" is unnecessarily rigid.

The Worker's Compensation Act is to be liberally construed in favor of claimants. Stott v. Texas Employers Ins. Ass'n, 645 S.W.2d 778, 780 (Tex.1983); Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73, 75 (1953); Liberty Mut. Ins. Co. v. Wright, 196 S.W.2d 349, 351 (Tex.Civ.App.--Fort Worth 1946, writ ref'd). There are two reasons for such liberal construction of the Act. First, a worker to whom the Act applies, is denied his or her common-law rights and therefore, the supreme court has held the Act should be liberally construed in the worker's favor. Hargrove, 152 Tex. 243, 256 S.W.2d at 75. Second, since the Worker's Compensation Act is "remedial," "if there be any reasonable doubt which may arise in a particular case as to the right of the injured employee to compensation, same should be solved in favor of such right." Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318 (1955), citing Jones v. Texas Indemnity Ins. Co., 223 S.W.2d 286, 288 (Tex.Civ.App.--El Paso 1949, writ ref'd).

Although article 8306, section 12b requires that a compensable hernia must appear "suddenly and immediately" following the injury, neither the Act nor Texas case law establishes the appropriate time frames to which these terms apply.

The Worker's Compensation Act does not define the term "suddenly and immediately" as used in article 8306, section 12b. The term "sudden" has been defined as "[h]appening without previous notice or with very brief notice; coming or occurring unexpectedly; unforeseen; unprepared for." BLACK'S LAW DICTIONARY 1284 (5th Ed.1979). Black's Law Dictionary defines "immediate" as follows:

[p]resent; at once; without delay; not deferred by any interval of time. In this sense, the word, without any very precise signification, denotes that action is or must be taken either instantly or without any considerable loss of time. A reasonable time in view of particular facts and circumstances of case under consideration.... Not separated in respect to place; not separated by the intervention of any intermediate object, cause, relation, or right.

Id. at 675.

Absent legislative direction, courts should not affix a specific and precise time frame to these two terms. The phrase "suddenly and immediately" is relative and does not necessarily mean "instantaneous." Gravell, 297 S.W.2d at 372. In its efforts to apply the term "suddenly and immediately," the Gravell court cited case law from other jurisdictions which provided, in pertinent part, as follows:

The word 'immediately' must gather its meaning from its application.... It depends upon the circumstances and events in connection with which it is used. Happening 'suddenly' or 'immediately following' does not mean happening instantaneously. When our Legislature used the word 'suddenly' ... it meant that the hernia must have developed without warning, or, 'without previous notice'; and that it is not attributable to any pre-existing cause.

Etter v. Blue Diamond Coal Co., 187 Tenn. 407, 215 S.W.2d 803, 806 (1948).

The...