United Ben. Fire Ins. Co. v. Stock

• Decision Date: 23 March 1961
• Docket Number: No. 13638,13638
• Parties: UNITED BENEFIT FIRE INSURANCE COMPANY, Appellant, v. Paul STOCK, Appellee.
• Court: Texas Court of Appeals

Page 941

344 S.W.2d 941

UNITED BENEFIT FIRE INSURANCE COMPANY, Appellant, v. Paul STOCK, Appellee.

No. 13638.

Court of Civil Appeals of Texas, Houston.

March 23, 1961.

Rehearing Denied April 13, 1961.

Bryan & Patton, Chilton Bryan, E. H. Patton, Jr., Julietta Jarvis, Houston, for appellant.

Cire & Jamail, James J. Hippard, Houston, for appellee.

COLEMAN, Justice.

This is a workman's compensation case wherein the plaintiff, Paul Stock, recovered a judgment in a trial before a jury for permanent total disability. Plaintiff fell from the tailgate of a truck, pulling a 55 gallon drum partially filled with gasoline down on him. He sustained a broken leg and injuries to his back. The leg failed to heal properly, necessitating two operations, the last of which occurred a few days before the trial.

Plaintiff sought recovery on the theory that he has suffered total and permanent disability by reason of the cumulative effect of the incapacity resulting from the injury to his leg, a specific injury, operating concurrently with the injury to his back, a general injury.

The court included in his charge the following Special Issues:

'Special Issue No. 1

'Do you find from a preponderance of the evidence that the plaintiff, Paul Stock, received an accidental injury to his body on or about October 7, 1957?

'Special Issue No. 3

'Do you find from a preponderance of the evidence that such injury, if any, was a producing cause of any incapacity on the part of Paul Stock?

'Special Issue No. 4

'Do you find from a preponderance of the evidence that such incapacity, if any you have found, was total?

'Special Issue No. 6

'Do you find from a preponderance of the evidence that such total incapacity, if any, is permanent or is or was temporary?'

The defendant requested in proper form special issues inquiring as to whether or not plaintiff's incapacity (present and future) was not confined solely to the right leg and whether or not it was not caused solely by the injury to his right leg. It also requested the court to instruct the jury that neither total nor partial incapacity could exist if the injury and its effects were confined to the leg. Plaintiff objected to the submission of these issues for the reason that defendant was not entitled to an affirmative submission of defensive issues which had not been raised by a special pleading in defendant's answer. Under Rule 279, Texas Rules of Civil Procedure, the refusal of the court to submit these issues was not error, Texas Employers' Ins. Ass'n v. Tanner, Tex.Civ.App., 218 S.W.2d 277, error ref., n. r. e., unless, as contended by defendant, plaintiff had the burden of proving that the injuries and their effects are not confined to the specific member.

Before the testimony was concluded and while the court was considering his charge, defendant requested permission to file a trial amendment setting up its contention that plaintiff's injury and resulting disability were confined solely and only to his right leg. This request was refused and we cannot say that this refusal constituted an abuse of discretion on the part of the Trial Court. The medical witnesses, two of whom were presented by the defendant, had completed their testimony at the time the request was presented. The trial judge might very well have concluded that defendant knew of the facts raising the confinement defense prior to the trial and that it would be necessary to permit plaintiff to recall medical witnesses in the event such request was granted, thereby necessitating an unreasonable delay and prejudicing plaintiff in maintaining his action. Rule 66, T.R.C.P.; General Mills, Inc. v. Livingston, Tex.Civ.App., 333 S.W.2d 215; Lone Star Steel Company v. Owens, Tex.Civ.App., 302 S.W.2d 213, ref., n. r. e.

Defendant contends that 'without the finding that plaintiff's incapacity was not limited to his leg and without the finding that plaintiff's incapacity was not caused by the injury to the leg, plaintiff is not entitled to recover for a general injury,' and relies strongly on Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, 654. There plaintiff alleged an injury to her left foot and neck, and that by reason of such injuries she sustained total and permanent disability. The jury found that she received an accidental personal injury '(a) to her foot' and '(b) to her neck'; that the accidental injury was the producing cause of her incapacity. The court held that plaintiff alleged two theories of recovery, one on a specific injury and one on a general injury, and that it was her burden to prove and secure jury findings 'supporting each of the theories advanced before she would be in position to choose between the two (emphasis added) and move the court to render and enter judgment upon the findings establishing the general injury.' The court further held that the answers to the issues submitted were insufficient to establish that the injuries to the neck authorized a judgment for plaintiff since it could not be ascertained which injury was the producing cause of the incapacity, and that 'Having failed to submit the issues in the manner outlined herein, the trial court should have responded to defendant's request and submitted requested Issue No. 6.' Requested Issue No. 6, 'Do you find from a preponderance of the evidence that the incapacity, if any, of plaintiff, Molinda Scott, was not caused solely by the incapacity, if any, to her left foot,' was raised by the evidence and by affirmative pleading of defendant.

We believe the Scott case distinguishable on the differences in the pleadings and charge from such cases as Texas Employers' Ins. Ass'n v. Tanner, supra, where Tanner alleged a general injury (including injury to his legs) and a hernia, for which the Association provided an operation, which was successful. The jury found that Tanner received an accidental injury, which was the producing cause of total incapacity and its duration would be 401 weeks. The Association complained of the action of the court in permitting the jury to take into account the hernia suffered in the accident as a source of his general incapacity because of the successful operation. The court rejected this complaint, saying:

'It is settled law in this state that, where the pleadings and the evidence justify the submission of the issue of a general injury and total incapacity, the jury is allowed to determine that such injury and incapacity resulted from the injury, of whatever nature it might be. * * * When an employee has received an injury to a specific member of the body, he is not confined to a recovery of the compensation specifically provided for such injury if he is able to allege and prove other injuries.'

In Consolidated Underwriters v. Lowrie, Tex.Civ.App., 128 S.W.2d 421, 423, error ref., plaintiff was riding in a truck when a large limb extending over the road struck him on the head, rendering him unconscious and causing him to lose the vision in his right eye. The court submitted the cause on the theory of a general injury and the defendant objected on the ground that it permitted the jury to take into consideration the loss of vision of the right eye which, being a specific injury, could not form the basis of a judgment for total incapacity. The court disposed of this objection in these words: 'That contention is denied. The injury to the eye was only one element of the total incapacity. Appellee had the right to send to the jury all the injuries suffered by him as the basis of their answer to that question.'

While the evidence raised the inferential-rebuttal issues contended for by defendant there were no pleadings on which such issues could be based. The issues were not tried by consent since the evidence was not subject to objection and plaintiff objected to the submission of the issues. Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905, ref., n. r. e. Defendant's Points of Error One-Six, inclusive, do not present error.

The defendant urges as error the failure of the court to include in his charge the following requested Special Instruction:

'You are instructed that neither total incapacity nor partial incapacity as such terms are used herein can exist where an injury and its effects are confined solely to the leg or where such injury produces only a loss of use of a leg.'

While as an abstract question of law, the instruction was correct, and so charging the jury would not have been reversible error, as against an objection that it informed the jury of the effect of their answer as held in Texas Employers Ins. Ass'n v. Goines, Tex.Civ.App., 202 S.W.2d 487, ref., n. r. e., it does not follow that the refusal to so instruct the jury constituted error. Traders & General Ins. Co. v. Rischer, Tex.Civ.App., 210 S.W.2d 652, ref., n. r. e.

In Johnson v. Zurich General Accident & Liability Ins. Co., Ltd., 146 Tex. 232, 205 S.W.2d 353, the Supreme Court held that prior to the adoption of Rule 277, T.R.C.P., it was settled that, in a case submitted to the jury on special issues, it was error for the trial court to give in the charge to the jury general instructions on the law, and that the rule placed no additional requirement upon the trial judge in preparing his charge, but its effect is to prevent a reversal on the sole ground that an explanatory instruction or definition amounts to a general charge. The rule requires that such explanatory instruction or definition be necessary to enable the jury to properly pass on such issues. In Owens v....