U.S. Fire Ins. Co. v. Monn, 2-82-082-CV
| Decision Date | 18 November 1982 |
| Docket Number | No. 2-82-082-CV,2-82-082-CV |
| Parties | UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Carolyn J. MONN, Appellee. |
| Court | Texas Court of Appeals |
Law Office of James P. Wagner and James P. Wagner, Fort Worth, for appellant.
Herrick & Purcell and Kirk Purcell, Fort Worth, for appellee.
Before MASSEY, C.J., and RICHARD L. BROWN and JORDAN, JJ.
This is an appeal from a judgment awarding worker's compensation benefits for permanent total incapacity to appellee Mrs. Carolyn J. Monn.
We affirm.
Trial of this case was had before a jury. Appellee Mrs. Monn testified that she was employed as a "Home Health Aide" by the Family and Individual Services association. Mrs. Monn told the jury that her duties included certain light housework, cooking and caring for her employer's clients, primarily elderly people. Mrs. Monn said that on July 10, 1980 she was caring for one such elderly lady. When Mrs. Monn noticed that the lady appeared wobbly and about to fall, Mrs. Monn turned quickly to steady her. At that time, Mrs. Monn says, she felt a pain in her back. Within a few days the pain became worse, and by the time of trial Mrs. Monn testified that she could not perform the tasks of an ordinary working woman due to the bad back. The jury found that Mrs. Monn's injury had occurred in the course of her employment and that such injury was total and permanent. Pursuant to these fact findings, the court awarded Mrs. Monn judgment against appellant United States Fire Insurance Company, Mrs. Monn's worker's compensation carrier, which had earlier denied her claim.
Appellant challenges the judgment by three points of error. Point of error number one alleges that the court erred in refusing to submit appellant's proposed definition of the term "partial incapacity" to the jury in violation of Tex.R.Civ.P. 277 and 279. We disagree. We find that appellant failed to raise the issue of "partial disability" by way of written pleadings. According to Rule 279 a party is not entitled to the submission of any issue where such issue is raised only by general denial and not by an affirmative written pleading. It was therefore unnecessary for the trial court to tender a definition of "partial incapacity" where such issue was improper for submission on the state of the pleadings.
Although appellant also contends that the issue was raised by the evidence, the court denied appellant's motion for a trial amendment. There being no evidence of a written amendment having been tendered below, we cannot say that the court erred in refusing the requested definition. See Robert Nanney Chevrolet Co. v. Evans & Moses, 601 S.W.2d 411 (Tex.Civ.App.--Beaumont 1980, no writ). We also find that appellant's requested definition was not submitted in proper form. The requested definition at issue here was made by appellant orally, by way of an objection to the charge. Rule 279 states that the failure to submit a requested definition shall not be deemed a ground for reversal unless such definition is tendered in writing. In addition, Tex.R.Civ.P. 273, requires that requests for definitions be prepared and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties for examination and that such requests be made separate and apart from such party's objections to the court's charge. Neither rule was followed in the case at hand. Appellant's point of error number one is overruled.
Appellant's second ground of error contends that the court below erred in refusing to grant appellant's motion for a continuance. Appellant alleged at a hearing on the day of trial that appellant had been unable to obtain certain discovery and that additional time was needed to fully develop its defense. The court denied the motion on the ground that appellant had not used due diligence in its attempt to obtain discovery.
A party seeking a continuance for the purpose of obtaining testimony must use diligence in its attempts to obtain such evidence. Tex.R.Civ.P. 252. The overruling of a motion for continuance rests in the sound discretion of the trial court and will not be overturned unless there is an abuse of discretion. Celanese Coating Co., Devoe Paint Div. v. Soliz, 541 S.W.2d 243 (Tex.Civ.App. Corpus Christi 1976, no writ).
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