Oswald v. Texas Employers' Insurance Ass'n

789 S.W.2d 636, 1990 WL 52933
CourtCourt of Appeals of Texas
DecidedApril 10, 1990
DocketNo. 9788
StatusPublished

This text of 789 S.W.2d 636 (Oswald 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
Oswald v. Texas Employers' Insurance Ass'n, 789 S.W.2d 636, 1990 WL 52933 (Tex. Ct. App. 1990).

Opinions

GRANT, Justice.

William A. Oswald, Jr. appeals his workers’ compensation case because he was not found to be totally incapacitated. Oswald contends that the trial court erred by denying his motion for directed verdict and for judgment non obstante veredicto because the evidence establishes conclusively that his injury rendered him totally incapacitated. Alternatively, he contends that the trial court erred in denying his motion for a new trial because the jury’s verdict was against the great weight and preponderance of the evidence.

On December 3, 1985, while employed as a janitor at Newcourt, Inc., Oswald was collecting fifty-five gallon barrels of trash, moving them to a dumpster by the use of a two-wheel dolly, picking up the barrels without assistance and dumping them into a dumpster. He had been emptying the barrels throughout his six-month employment without incident. Oswald estimated the weight of the barrels to be from 100 to 175 pounds. On the occasion in question, as Oswald picked up a barrel, he felt pain going down both legs all the way to his heels and up to his shoulders. Oswald was forty-two years of age at the time of the injury. He is a man of limited education and has held jobs requiring strenuous manual labor for most of his working life.

The jury was instructed that Texas Employers’ Insurance Association admitted that Oswald sustained an accidental injury during the course and scope of his employment with Newcourt. The jury was then asked if the injury was a producing cause of any total incapacity. The jury answered that it was not. The jury found that the injury was a producing cause of a partial incapacity beginning on November 28, 1985, and that the partial incapacity was permanent. The jury found that after Oswald became partially incapacitated, he had an average weekly earning capacity of $200 per week. The jury answered “No” to the question asking whether Oswald’s compensation in weekly installments instead of a lump sum would result in a manifest hardship to him.

Oswald contends that the trial court erred in failing to grant him an instructed verdict and a judgment n.o.v. because the evidence conclusively establishes that he was totally incapacitated by his injury.

When the trier of fact returns negative findings to issues upon which the proponent has the burden of proof, the negative findings need not be supported by affirmative evidence and, on appeal, the party having the burden of proof is placed in the position of having to contend that the evidence established the issue as a matter of law or that the duties are against the great weight and preponderance of the evidence. Copeland Well Service, Inc. v. Shell Oil Co., 528 S.W.2d 317 (Tex.Civ.App. — Tyler 1975, writ dism’d). The plaintiff is not entitled to a judgment n.o.v. or an instructed verdict unless the facts were conclusively established in his favor. Morris v. Brown, 337 S.W.2d 759 (Tex.Civ.App.-Eastland 1960, no writ). An instructed verdict or a judgment n.o.v. is proper only under very limited circumstances. An issue is conclusively established when the evidence is such that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. Triton Oil & Gas Corp. v. Marine Contractors, 644 S.W.2d 443 (Tex.1982).

Oswald points to Texas Employers’ Indemnity Company’s answer to an interrogatory

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Related

Copeland Well Service, Inc. v. Shell Oil Co.
528 S.W.2d 317 (Court of Appeals of Texas, 1975)
Bituminous Casualty Corporation v. Martin
478 S.W.2d 206 (Court of Appeals of Texas, 1972)
In Re King's Estate
244 S.W.2d 660 (Texas Supreme Court, 1951)
Texas Employers' Insurance Ass'n v. Gallegos
415 S.W.2d 708 (Court of Appeals of Texas, 1967)
Standard Fire Insurance Co. v. Ratcliff
537 S.W.2d 355 (Court of Appeals of Texas, 1976)
Texas Employers' Insurance Ass'n v. Thornton
556 S.W.2d 393 (Court of Appeals of Texas, 1977)
Weicher v. Insurance Company of North America
434 S.W.2d 104 (Texas Supreme Court, 1968)
Cornell v. Cornell
570 S.W.2d 22 (Court of Appeals of Texas, 1978)
Morris v. Brown
337 S.W.2d 759 (Court of Appeals of Texas, 1960)
Triton Oil & Gas Corp. v. Marine Contractors and Supply, Inc.
644 S.W.2d 443 (Texas Supreme Court, 1982)
Sammons Enterprises, Inc. v. Manley
540 S.W.2d 751 (Court of Appeals of Texas, 1976)
Travelers Insurance Co. v. Meyer
392 S.W.2d 520 (Court of Appeals of Texas, 1965)
Seeton v. Aetna Casualty & Surety Co.
535 S.W.2d 783 (Court of Appeals of Texas, 1976)
INA of Texas v. Briscoe
780 S.W.2d 786 (Texas Supreme Court, 1989)

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Bluebook (online)
789 S.W.2d 636, 1990 WL 52933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oswald-v-texas-employers-insurance-assn-texapp-1990.