Twin City Fire Ins. Co. v. Gibson, 8237

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation488 S.W.2d 565
Docket NumberNo. 8237,8237
PartiesTWIN CITY FIRE INSURANCE COMPANY, Appellant, v. Raymond GIBSON, Appellee.
Decision Date22 November 1972

Gibson, Ochsner, Adkins, Harlan & Hankins (Jewett E. Huff), Amarillo, for appellant.

Gibbins & Spivey (Bob Gibbins), Austin, for appellee.

JOY, Justice.

This is a workmen's compensation case wherein judgment was rendered in favor of plaintiff-appellee Raymond Gibson for total and permanent disability and against defendant-appellant Twin City Fire Insurance Company. Affirmed.

Appellee, at the time the alleged injury occurred which is the basis of this suit, was employed as a journeyman lineman for Southwestern Public Service Company in Plainview, Hale County, Texas. It is stipulated that a claim was received by the Industrial Accident Board (hereinafter referred to as Board) stating, in part, that appellee had sustained an injury to his left shoulder while lifting an electric line and that as a result of the injury, appellee was permanently disabled. The claim before the Board further stated that the injury occurred in Plainview, Hale County, Texas. The claim was acted upon favorably to appellee and appellant appealed from this determination. It is undisputed that the original petition filed by appellee in the district court gave the location and date which appellee sustained an injury as January 16, 1970, in Plainview, Hale County, Texas. However, an amended petition was filed by appellee prior to trial on the merits which alleged the location and date of the injury as being sustained on or about January 16 or 23, 1970 in Castro County, Texas. Otherwise, the basic allegations contained in the claim before the Board and the amended petition of appellee are essentially the same. Appellant filed a plea to the jurisdiction of the court asserting a fatal variance between the claim before the Board and the claim presented in the amended petition of appellee. This plea was overruled and trial was to a jury. Judgment was entered in favor of appellee for total and permanent disability. Appellant has duly perfected appeal from the trial court's judgment assigning 75 points of error, such points being grouped into several categories.

Appellant, in points of error nos. 1 through 8 and 48, 50 and 53, asserts primarily that there is a fatal variance between the appellee's claim before the Board and his amended petition upon which the case went to trial, and that the court erred in failing to submit various special issues pertinent thereto. Appellant contends that the claim before the Board listed the place and time of the injury asserted by appellee to have been in Plainview, Hale County, Texas on January 16, 1970 and the amended petition of appellee lists the injury to have been in Castro County, Texas on or about January 16, or 23, 1970, and therefore the claim presented by this lawsuit was not presented to the Board and the court lacked jurisdiction to hear the case.

One of the initial requirements of our Workmen's Compensation Statute is that a claim for benefit under the act must first be presented to the Board. The Board must have an opportunity to pass upon the claim before it may be presented in court. Appeal from the decision of the Board is trial de novo in the district court with the jurisdictional requirement that the claim before the court has been presented to the Board. Hartford Accident & Indemnity Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205 (1936). Various interpretations of this rule have been expressed in case law. One interpretation of the rule is to allow a claimant to enlarge his claim where injuries are generally described before the Board. It has been stated that the purpose of filing the claim is to give sufficient information so that a proper basis for investigation, hearing and determination of the claim is presented. In the case before us the nature of the injury complained of by appellee is not the basis of appellant's contention that there is a fatal variance. The claim before the Board and the petition before the court reflect the same basic description and nature of injury. The basis of appellant's attack upon the jurisdiction of the court is couched in terms of a variance in the date and location of the injury.

We do not believe the difference in the date and location of the alleged injury is a fatal variance under the facts before us. We take judicial cognizance that Hale and Castro Counties are adjacent to each other. Appellant relies upon the case of Solomon v. Massachusetts Bonding & Insurance Company, 347 S.W.2d 17 (Tex.Civ.App.--San Antonio 1961, writ ref'd) for the proposition that a variance in the time and location as stated in the claim before the Board and the petition before the court upon trial is fatal and the court has no jurisdiction. In the Solomon case the variance was two and a half years in time and 100 miles of distance and this discrepancy was held to be too great. We agree that an extensive variance in location and time such as that in the Solomon case would be fatal. However, the Solomon case is distinguishable and not applicable to the facts of the case before us. We do not believe there is an absolute guideline by which a variance is determined to be fatal or permissible. The rule in Texas as re-examined and enunciated in the case of Johnson v. American General Insurance Company, 464 S.W.2d 83 (Tex.Sup.1971) is as follows: 'If the Board has had jurisdiction to pass upon the claim, and if there is a fair and substantial identity of the claim . . . thereafter sued upon in court, then there is no fatal variance.' The critical factor under this test has been referred to as the 'identity of the claim.'

In the case before us, the only variance between the claim before the Board and the claim presented in the district court was in relation to place and time. The nature and extent of the injury was identical. We do not believe the slight discrepancy in time and location of the alleged injury is fatal under the facts of this case and appellant's points of error nos. 1 through 8 and 48, 50 and 53 are overruled.

Appellant, in points of error nos. 9 through 22, complains of ruling of the trial court by which appellant was restricted from the introduction of certain evidence, to wit:

(1) The sustaining of objections to witness Lloyd Davis' testimony preventing him from testifying as to the details of the 'sickness' and 'accident' program furnished by Southwestern Public Service.

(2) Preventing appellant from showing numerous instances wherein appellee claimed benefits under the 'sickness' program.

(3) In limiting the testimony of Lloyd Davis from giving reasons for appellee's discharge.

(4) In limiting appellant in his cross-examination of appellee in regard to the allegation that appellee had changed his story between the time he presented his claim to the Board and the time of trial.

(5) In preventing appellant's counsel from showing a prior inconsistent position taken by appellee.

(6) In excluding the testimony of Lloyd Davis as to various payroll checks issued by Southwestern Public Service which were under the company's 'sickness' program rather than the 'accidental' injury program and the exclusion of various time sheets to the same effect.

(7) In excluding the terms and provisions of Southwestern Public Service Company's health and accident policy.

Appellant's points in this area are multifarious, lengthy and repetitious and the foregoing is a general summary of his points; the remaining points being objections to similar alleged restrictive rulings of the trial court of the same general nature. The crux of appellant's points of error in this area centers around the basic contention that appellant was denied, through various evidentiary rulings by the court, an orderly method of impeaching appellee. A brief recitation of the factual circumstances surrounding appellant's contentions in this area will be necessary.

Southwestern Public Service Company makes available to its employees two plans providing benefits for on-the-job and off-the-job injury or sickness. The 'A' or accident plan encompasses Workmen's Compensation and is available only for on-the-job injuries. The 'S' or sickness plan, covers any sickness or accident which occurs off the job and the employee is reimbursed by the company for his pay up to a certain length of time. The two plans heretofore described are mutually exclusive, i.e., one covers and prescribes benefits only for on-the-job injuries and the other covers and prescribes benefits only for off-the-job sickness or injury. In order for an employee to avail himself of the benefit of the 'S' plan, his daily time sheets are coded with the inscription 'S'. Likewise, he must fill out his time sheets with the notation 'A' in order to receive any benefits under the 'A' plan.

Appellant argues in its brief that it was prevented from showing that appellee had received benefits under the 'S' plan, thus claiming on off-the-job injury which would be totally inconsistent with appellee's claim that he was injured on the job. Appellee contends that any evidence of benefits received by appellee would be a violation of the collateral source rule. It is well settled that the collateral source rule prevents a litigant from showing payments from other sources such as insurance, retirement fund, social security, etc. Kainer v. Walker, 377 S.W.2d 613 (Tex.Sup.1964); Texas General Indemnity Company v. Hamilton, 420 S.W.2d 735 (Tex.Civ.App.--San Antonio 1967, writ ref'd n.r.e.); R. E. Dumas Milner Chevrolet Company v. Morphis, 337 S.W.2d 185 (Tex.Civ.App.--Fort Worth 1960, writ ref'd n.r.e.); Traders & General Insurance Company v. Reed, 376 S.W.2d 591 (Tex.Civ.App.--Corpus Christi 1964, writ ref'd n.r.e.); Eichel v. New York Central Railroad Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307 (1963). Appellant states, however, that in this case the claims made by...

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