Deuberry v. Texas Pacific Indemnity Co.

478 S.W.2d 606, 1972 Tex. App. LEXIS 2590
CourtCourt of Appeals of Texas
DecidedMarch 17, 1972
DocketNo. 17319
StatusPublished
Cited by1 cases

This text of 478 S.W.2d 606 (Deuberry v. Texas Pacific Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deuberry v. Texas Pacific Indemnity Co., 478 S.W.2d 606, 1972 Tex. App. LEXIS 2590 (Tex. Ct. App. 1972).

Opinion

OPINION

MASSEY, Chief Justice.

Workmen’s compensation case. Plaintiff J. W. Deuberry sustained personal injuries on November 9, 1970 while acting in scope and course of his employment and was paid weekly compensation for a period of 42 weeks by the defendant Texas Pacific Indemnity Company, insurer of plaintiff’s employer. Subsequent claim and suit was for compensation for total and permanent disability.

Pursuant to verdict of the jury judgment was rendered based upon a finding of 53 weeks as the duration of plaintiff’s temporary total disability. By other findings the jury found such disability to have been resultant from an injury to plaintiff’s left knee and that disability sustained was because of that injury alone.

Essentially plaintiff predicated his claim of total permanent disability upon a back injury alleged to have been sustained at the same time of his knee injury. In answer to a plaintiff’s issue the jury answered “No” to the inquiry of whether his injury consisted in part of an injury to his back; and in answer to a defendant’s issue the jury found that, except for such disability as may have resulted from the injury to plaintiff’s knee, his disability had been or would be caused solely by conditions, to-wit: Alcoholism and/or acquired disc disease with bulging at the L 4 — 5 level, existent independent of, unrelated to, and not aggravated by, the injury sustained by plaintiff.

The jury refused, by its answer “No”, to find that manifest hardship and injustice would result if the compensation to which plaintiff was entitled was not paid in a lump sum.

Plaintiff, not being satisfied with the award of the judgment based upon the jury verdict, perfected his appeal.

We affirm.

Plaintiff’s first three points of error complain of the admission of evidence whereby the defendant sought to refute plaintiff’s evidence of injury to his back and/or disability in consequence of back injury, and in contradiction thereof to establish its own pleaded contention that plaintiff’s disability was caused solely by conditions existing independent of, unrelated to and not aggravated by the injury sustained by him on the occasion in question.

Material, we believe, is plaintiff’s own testimony on cross-examination to the effect that in the summer of 1971 he was admitted as a patient in a hospital in Wichita Falls devoted to rehabilitation of persons addicted to the use of alcohol. By his own testimony he was there for a period of four days undergoing treatment afforded by the hospital for alcoholism. By other evidence the period of treatment was shown as six days. Plaintiff admitted that he was in the hospital at such time to receive rehabilitation treatment, with the hope and expectation that he could be able to work when they got through with him.

Plaintiff further testified that “outside” his injuries made the subject of suit and [608]*608subsequent thereto, he never suffered any illness other than occasioned by his alcohol problem. Defendant’s witness W. A. Spoonts, Director of Draughon’s Business College, testified that on two occasions— in August, 1971 and in September, 1971— plaintiff entered his enrollment as a student in business college and attended on the first occasion approximately 10 days, and on the second occasion approximately IS days, but ceased as an enrolled student on both of these occasions for a reason given as “illness”.

Substantially, the remainder of defendant’s evidence of plaintiff’s habits of intemperance, or of conditions of intoxication affecting his ability to work, related to a period antecedent to November 9, 1970, the date of his injury. Evidence bearing thereupon related principally to the year 1968, but there was some evidence thereof leading up to the very day he went to work. This was three or four weeks prior to November 9, 1970.

We take note that plaintiff’s attorney made every effort to protect his client in the prevention of defendant’s offer of such evidence before the jury, its reception by order of the court, and its consideration by the jury in its deliberations. Thus the question is clearly defined: Was the evidence of plaintiff’s habit of intoxication and its effects upon his incapacity to perform the tasks of a workman properly admitted? We are convinced that it was.

Plaintiff argues inadmissibility of the evidence, or at least such evidence as related to prior intemperate habits, upon this court’s own case. McCarty v. Gappelberg, 273 S.W.2d 943, 46 A.L.R.2d 98 (Fort Worth, Tex.Civ.App., 1954, writ ref., n. r. e.). In American Law Reports the case is followed (46 A.L.R.2d 103) by the Annotation : “Admissibility of evidence showing plaintiff’s antecedent intemperate habits, in personal injury motor vehicle accident action.” In that case the question to be resolved was the admissibility of prior intemperate habits of the plaintiff, a pedestrian who was struck by a motor vehicle while he was crossing the street at a crosswalk, sought to be shown for the purpose of raising the inference that he was under the influence of alcohol at the very time he was struck. In no way was there any consideration in said case of any bearing prior intemperate habits might have had upon the plaintiff’s injuries, or disability resultant therefrom, as for example: under a claim that there was undue extension of his period of incapacity or existence of any period of incapacity following injury because of condition resultant from his intemperate habits, etc. There was no evidence of intemperate habits subsequent to date of such injuries.

In Gappelberg we held that for the purpose of establishing the primary fact for which it was admitted, that plaintiff was intoxicated at the time of his accidental injury, it was inadmissible and amounted to reversible error under the test of Texas Rules of Civil Procedure 434. We see no relation between Gappelberg and the instant case and are of the opinion that our decision here is in no way controlled thereby. In the instant case plaintiff did not sustain his injury while in a state of intoxication or as a result of intemperate habits, and there was no claim that he did.

Here the material issue was whether the intemperate habits of the plaintiff, rather than any disabled condition of his back, caused his total disability, if there was any, after the period he might have been or might be disabled on account of injury to his knee. That such total disability, if any, as was sustained by plaintiff after termination of disability occasioned by reason of the knee injury was thus resultant was the contention of the defendant insurance company. By the jury’s answers to special issues under affirmative defensive pleadings the validity of the contention was established. As already noticed the accidental injury plaintiff sustained was not caused by his intemperate habits. Such habits were never [609]*609contended to have any bearing upon the inception of insurance company liability for compensation, but only upon the extent and duration of the plaintiff’s disability and the compensation benefits due to be paid as a consequence.

It was for 53 weeks that plaintiff’s total incapacity existed in consequence of his knee injury. Thus there was a particular occasion, or a series of occasions, or indeed a continuous occasion, upon which the fact of plaintiff’s alleged total disability was material to our consideration.

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Bluebook (online)
478 S.W.2d 606, 1972 Tex. App. LEXIS 2590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deuberry-v-texas-pacific-indemnity-co-texapp-1972.