Holgin v. Texas Employers Insurance Ass'n

790 S.W.2d 97, 1990 Tex. App. LEXIS 1485, 1990 WL 83546
CourtCourt of Appeals of Texas
DecidedMay 16, 1990
DocketNo. 2-89-156-CV
StatusPublished
Cited by1 cases

This text of 790 S.W.2d 97 (Holgin v. Texas Employers Insurance Ass'n) 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
Holgin v. Texas Employers Insurance Ass'n, 790 S.W.2d 97, 1990 Tex. App. LEXIS 1485, 1990 WL 83546 (Tex. Ct. App. 1990).

Opinion

OPINION

MEYERS, Justice.

This is an appeal from a suit for benefits under the Worker’s Compensation Act. Appellant, (Jose) J. Samuel Holgin, complains in three points of error that: 1) the jury’s finding that appellant’s injury on or about December 17, 1985, was not a producing cause of any permanent partial incapacity was so against the great weight and preponderance of the evidence presented as to be manifestly wrong, unjust, and constitutes reversible error because the evidence conclusively establishes permanent partial incapacity, as a matter of law; 2) the trial court abused its discretion in failing to grant appellant’s motion for a new trial; and 3) the testimony of a juror was improperly excluded on the ground her affidavit did not accompany the motion for new trial. We overrule appellant’s points of error. The judgment of the trial court is affirmed.

Holgin, a garage attendant, claimed he sustained an accidental injury during the course of his employment on December 17, 1985. Holgin alleges that because of the injury, he is unable to do the usual and customary tasks of a workman in order to obtain and retain employment. One of the issues presented at trial was whether Holgin was actually in the course and scope of his employment at the time of his injury. The jury found Holgin was injured on December 17,1985, in the course and scope of his employment, and that the injury was a producing cause of total incapacity from February 3, 1986, until April 13, 1987. The jury found the injury was not a producing cause of any partial incapacity.

Appellant’s first point of error complains that the jury’s finding that appellant’s injury was not a producing cause of any permanent partial incapacity was so against the great weight and preponderance of the evidence as to be manifestly wrong, unjust, and constitutes reversible error because the evidence conclusively establishes permanent partial incapacity as a matter of law.

In reviewing a point of error asserting that a finding is “against the great weight and preponderance” of the evidence, we must consider and weigh all of the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ford Motor Co. v. Nowak, 638 S.W.2d 582, 585 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.). So considering the evidence, if a jury finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained, regardless of whether there is some evidence to support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959) (per curiam); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951) (per curiam).

We do not find, from a review of all the evidence, that the jury’s finding that appellant’s injury was not a producing cause of any partial incapacity, was so against the great weight and preponderance of the evidence as to be manifestly wrong, unjust, or constitutes reversible error because the evidence conclusively establishes permanent partial incapacity as a matter of law. The two issues we must consider are: (1) whether any partial incapacity after April 13, 1987, arose from the original injury of December 17, 1985, or from other activities of Holgin unrelated to his employment; and (2) whether there was any partial incapacity after April 13, 1987 (i.e., whether Holgin suffered a reduction in earning capacity).

Texas Employers Insurance Association (“TEIA”) correctly points out that the conflicting testimony presented at trial regarding the cause of Holgin’s injuries only raised an issue of fact to be resolved by the jury. Holly Sugar Co. v. Aguirre, 487 S.W.2d 421, 425 (Tex.Civ.App.—Amarillo 1972, writ ref’d n.r.e.). In fact, the evi[100]*100dence shows that several of Holgin’s doctors indicated he may have injured his back playing basketball.

Holgin had the burden to persuade the jury by a preponderance of the evidence that he was incapacitated to the degree he claimed. As an interested party, his testimony merely created fact issues for the jury’s resolution. Escamilla v. Liberty Mut. Ins. Co., 499 S.W.2d 758, 760 (Tex.Civ.App.— Amarillo 1973, no writ).

Holgin relies upon Thomas v. Int’l Ins. Co., 527 S.W.2d 813 (Tex.Civ.App.—Waco 1975, writ ref’d n.r.e.), to support his contention that since evidence of his condition was corroborated by his foreman, Paul Rodriquez, this case should be reversed and remanded for new trial. We do not find in the present case that the evidence presented by Rodriquez was totally in support of Holgin’s contentions. Even though Rodriquez testified he would hire an uninjured, strong man over an injured man with 30% disability, he also stated that Holgin’s job would not be considered a hard labor type of job and that most of the time Holgin sat in the booth at the garage taking tickets where he could either sit or stand. This indicates to us that Rodriquez’ testimony was somewhat contradictory to Holgin’s and did not fully support Holgin’s testimony concerning his condition.

Holgin also relies on Robinson v. Charter Oak Fire Ins. Co., 551 S.W.2d 794 (Tex.Civ.App.— Waco 1977, writ ref’d n.r.e.) to prove the jury finding in the present case constitutes reversible error. Holgin cites Robinson to show that where the only testimony in the record establishing the extent of the disability of the plaintiff at the time of trial was that of the plaintiff himself and his doctor; and where the plaintiff testified to serious disabling symptoms and complaints which had persisted and had not improved and which conditions were corroborated and confirmed by the treating physician, that the jury’s answers that the claimant’s total incapacity was temporary, that it continued for fifteen weeks, and the jury’s failure to find that claimant’s injury was or could be a producing cause of any partial incapacity, were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, and therefore, would require the case to be reversed and remanded for a new trial. See id. The Waco Court of Appeals in Robinson held that the only competent evidence presented at time of trial was in support of appellant’s contentions. Id. at 799. The jury awarded fifteen weeks of incapacity as compared to a jury award in the present case of over sixty-one weeks of incapacity. Id.

Moreover, the Robinson case is distinguishable from the present case in that the plaintiff in Robinson was shown to have suffered serious disabling symptoms and complaints which persisted and did not improve for more than a year prior to trial and which conditions were corroborated by the plaintiff’s doctor. Id. The Robinson

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790 S.W.2d 97, 1990 Tex. App. LEXIS 1485, 1990 WL 83546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holgin-v-texas-employers-insurance-assn-texapp-1990.