Washington v. Aetna Casualty & Surety Co.

521 S.W.2d 313, 1975 Tex. App. LEXIS 2567
CourtCourt of Appeals of Texas
DecidedMarch 28, 1975
DocketNo. 17600
StatusPublished
Cited by5 cases

This text of 521 S.W.2d 313 (Washington v. Aetna Casualty & Surety 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
Washington v. Aetna Casualty & Surety Co., 521 S.W.2d 313, 1975 Tex. App. LEXIS 2567 (Tex. Ct. App. 1975).

Opinion

OPINION

BREWSTER, Justice.

This is a Workmen’s Compensation case in which the plaintiff, Melvin Hugh Washington, sought to recover benefits for total and permanent disability. The jury found in answer to Issue No. 1 that Washington did not sustain an injury on or about the date he alleged that he had been injured. Based on this verdict the trial court rendered judgment in favor of the defendant, The Aetna Casualty and Surety Company, and plaintiff has appealed.

The plaintiff’s 4th point of error is that the jury’s answer to Issue No. 1 is so against the great weight and preponderance of the evidence as to be manifestly wrong and there is insufficient evidence or no evidence to support such finding. For convenience we will discuss that point of error first. It is hereby overruled.

Issue No. 1 read: “Do you find from a preponderance of the evidence that the plaintiff received an injury on or about December 31, 1970? Answer: ‘We do’ or ‘We do not.’ ” The jury’s answer was “We do not.”

Plaintiff claimed to have hurt his shoulder on or about December 31, 1970. The work he was doing for Royal Tile Manufacturing Company, his employer, at the time he claimed to have been hurt was very hard manual labor consisting of putting broken tile in a wheelbarrow and dumping the wheelbarrow and pushing cars loaded with tile into a dryer. Plaintiff testified that he finished out the day when hurt and then missed the next three days from the job and returned to work on January 4, 1971. He admitted working almost continuously from January 4, 1971, until November 20, 1971. On this last date he said his shoulder popped out of joint while he was asleep and this required him to be taken to the hospital and to later undergo an operation. During the almost 11 months period from January 4, 1971, to November 20, 1971, plaintiff’s shoulder did [315]*315not ever get out of joint and he never complained to anyone that he could not do the work. Plaintiff admitted that he never went to a doctor for treatment of his alleged shoulder injury of December 31, 1970, until after his shoulder popped out of joint on November 20, 1971. Although he went to a doctor two times during that period for other matters he never complained to the doctor of shoulder pain. Plaintiff testified that after he fell through the top of a dryer and was hurt on December 31, 1970, and got up the plant manager and plant supervisor came over and asked him if he was hurt and that he said “no.” The plant manager was not called as a witness and the plant supervisor testified that he was at work on December 31, 1970, and that he did not come upon plaintiff that day after he had fallen through a dryer as plaintiff had said he did. The supervisor also testified that he was the person to whom plant employees were to report their injuries but that plaintiff never told him that he had sustained an injury to his shoulder. The doctor that treated plaintiff and that operated on his shoulder testified that in his opinion plaintiff’s shoulder trouble did not arise out of a fall occurring on or about December 31, 1970.

Because of the evidence referred to, the jury’s answer to Issue No. 1 was not so against the great weight and preponderance of the evidence as to be manifestly wrong.

In this case the burden of proof was on the plaintiff to establish that he had sustained an injury on or about December 31, 1970, as inquired about in Issue No. 1. He failed to get a favorable jury finding in answer to that issue. By answering the issue as it did the jury merely stated that it had not been convinced by a preponderance of the evidence that plaintiff had been injured as he had alleged.

In the case of Ross v. Sher, 483 S.W.2d 297 (Houston, Tex.Civ.App., 14th Dist., 1972, ref., n. r. e.) the appellant was contending that there was no evidence and insufficient evidence to support such a negative jury finding, as does the plaintiff here, and the court on page 299 announced the law applicable under such circumstances as follows:

“ ‘In situations such as this where a jury returns a negative answer to an issue upon which the proponent has the burden of proof, the jury’s negative answer need not be supported by affirmative evidence. Therefore, it avails the complaining party nothing to assert that a negative answer is without support in the evidence or is not supported by factually sufficient evidence. Under these circumstances, the complaining party is placed in the position of having to contend that the evidence establishes an injury as a matter of law. See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas Law Review, 361, 363 (1960).’ Smith v. Safeway Stores, Inc., 433 S.W.2d 217, 218 (Tex. Civ.App.—Tyler 1968, writ ref’d n. r. e.). Appellant’s no evidence points of error are overruled.”

On the same point see Watkins v. Yancey, 495 S.W.2d 366 (Texarkana, Tex.Civ. App., 1973, no writ hist.).

Because of the rules stated in the two cases just cited we overrule the part of plaintiff’s point of error No. 4 wherein he contends that there is no evidence and insufficient evidence to support the jury’s answer to Issue No. 1.

The question actually presented to us by plaintiff’s first three points of error is whether the trial court committed reversible error by admitting evidence tending to show that after plaintiff’s claimed injury of December 31, 1970, that is involved in this suit, the plaintiff sustained another injury on September 8, 1972.

We overrule those three points of error wherein plaintiff contends that reversible error was thus committed.

In a workmen’s compensation case evidence concerning the nature and extent of subsequent injuries is admissible. Such [316]*316evidence is admissible because it is relevant to the issue of whether or not the injury sued on is the producing cause of any incapacity claimed by plaintiff. St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962), and Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.Sup., 1963).

Because of the rule just announced the plaintiff’s contention that the offering by defendant of evidence tending to prove that he had sustained a later injury was an attempt to impeach the plaintiff on a collateral issue is without merit. Such evidence had a material bearing on an issue that was actually an element of plaintiff’s cause of action.

Part of the evidence that plaintiff complains of was contained in defendant’s Exhibits 4 and 12 (notice of injury and claim for compensation). The last two exhibits named are the same instrument. Apparently one copy of the instrument was identified as defendant’s Exhibit No. 4 and another copy of it as defendant’s Exhibit No. 12.

The notice of injury and claim for compensation (defendant’s Exhibits 4 and 12) contained in substance the following information: that Melvin Washington, Social Security No. 462-82-6236, age 21, whose employer was Royal Tile Mfg.

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Cite This Page — Counsel Stack

Bluebook (online)
521 S.W.2d 313, 1975 Tex. App. LEXIS 2567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-aetna-casualty-surety-co-texapp-1975.