Nicholes v. Texas Employers Insurance Ass'n

692 S.W.2d 57, 28 Tex. Sup. Ct. J. 542, 1985 Tex. LEXIS 848

• Court: Texas Supreme Court
• Decided: July 3, 1985
• Docket: No. C-4030
• Status: Published

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

This is a worker’s compensation case. Eudice Nicholes sought death benefits after her husband’s fatal heart attack. The jury failed to find that James Nicholes suffered a heart attack related to his employment. The trial court rendered a take nothing judgment against Nicholes. The court of appeals affirmed in an unpublished opinion. We originally refused writ in this case, no reversible error. On Motion for Rehearing, we still refuse the application, no reversible error.

Nicholes argued that the trial court submitted an improper instruction regarding a heart attack in the course of employment. On appeal, however, Nicholes filed only a partial statement of facts consisting of the objections to the charge and juror testimony from the hearing on her motion for new trial. On this partial statement of facts, we cannot determine whether giving the instruction was harmful error. See Ledford’s Performance Center v. Rhoden, 576 S.W.2d 919 (Tex.Civ.App.—Waco 1979, writ refd n.r.e.); Duffey v. Hanes, 474 S.W.2d 621, 623 (Tex.Civ.App.—Dallas 1971, writ ref’d n.r.e.). However, we approve 2 State Bar of Texas, Texas Pattern Jury Charges PJC 29.04 (1970) as a proper instruction to the jury with regard to a heart attack in the course of employment.

The Motion for Rehearing is overruled.