# Texas Employers' Insurance Ass'n v. Maston > Court of Appeals of Texas · February 2, 1959 · 321 S.W.2d 343 URL: https://www.frixlaw.com/law-library/cases/5023290 ## Case - **Full name:** TEXAS EMPLOYERS' INSURANCE ASSOCIATION v. Arthur H. MASTON - **Court:** Court of Appeals of Texas - **Decided:** February 2, 1959 - **Citations:** 321 S.W.2d 343; 1959 Tex. App. LEXIS 1914 - **Precedential status:** Published - **Opinion:** Dissent by Chapman - **Judges:** Northcutt, Chapman - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5023290 ## Opinion text CHAPMAN, Justice. I respectfully dissent. The judgment of the trial court, based upon a jury verdict in this case, has been reversed by the majority opinion because of the method of submission of Special Issue No. 1, the question inquiring if appellee sustained an accidental personal injury, and because of the argument to the jury made by appellee’s attorney concerning said issue and explanatory instruction given in connection therewith. The issue with instruction given is as follows: “Do you find from a preponderance of the evidence that the plaintiff, Arthur Maston, sustained an accidental personal injury or injuries to his body on or about August 7, 19S6? “You are instructed that the term ‘Injury’ or ‘Personal Injury’ as used in this charge, shall be considered to mean damage or harm to the physical structure of the body and such diseases and infections as naturally result therefrom or the incitement, acceleration, or aggravation of any disease, previously or subsequently existing by reason of such damage or harm to the physical structure of the body.” The majority opinion has said, “The issue was not limited to any certain injury pleaded by the appellee nor the evidence concerning the injury. The issue was too general under the evidence in this case, and asked the jury if appellee received any kind of an injury regardless of whether it was to his back as contended by appellee or some other portion of his body not even in question.” I believe the holding of the majority opinion is contrary to the rules approved by our Supreme Court in denying a writ outright (writ refused) in Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738 , and in the pronouncements of the court through their late Chief Justice Alexander. in Southern Underwriters v. Boswell, 138 Tex. 255 , 158 S.W.2d 280, 283 . The issues given in each case inquiring whether the claimants suffered accidental personal injuries on a certain date were of a general nature and almost identical to Issue No. 1 in the case at bar, as were the definitions given in connection therewith. Also the objections made to the issues and explanatory definitions were practically identical to the objections made to our corresponding issue and definition. In the Parker case it was alleged that poisonous and noxious gases injured the respiratory system and excited and accelerated a dormant tubercular condition. In the Boswell case the 'insurance company contended the disability of the employee was due to a prior illness, arthritis, just as appellant in our case contended the disability was due to a prior illness, prostate infection. In both of those cases the trial court’s issues and definitions, practically identical with ours, were held to be proper. The Supreme Court in the Boswell case said: “There appears to be some conflict among the decisions of the Courts of Civil Appeals of this State as to whether an issue submitting to the jury the question of an employee’s injury in a workmen’s compensation case should confine the jury to the injuries set out in the pleadings. * * * It is held by some Courts of Civil Appeals, and especially in previous opinions of the Fort Worth court, that the issue must set out the specific injuries alleged in the petition and raised by the evidence and confine the jury to the consideration of such specific injuries. Security Mut. Cas. Co. v. Bolton, Tex.Civ.App., 84 S.W.2d 552 , par. 4; Casualty Underwriters v. Lemons, Tex.Civ.App., 114 S.W.2d 333 , par. 2; Southern Underwriters v. Wright, Tex.Civ.App., 142 S.W.2d 297 , par. 4. In another line of cases it is held that where several .injuries are alleged the only proper way to submit the same is to submit each alleged injury separately, and that to submit all of the injuries in one *351 question is objectionable. Texas Employers Ins. Ass’n v. Watkins, Tex.Civ.App., 135 S.W.2d 296 ; Traders & General Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391 . Other courts hold that it is sufficient to inquire whether the employee sustained an accidental injury to his body on the occasion in question, without the necessity of setting out the various injuries mentioned in the pleadings. Southern Underwriters v. Thomas, Tex.Civ.App., 131 S.W.2d 409 ; Southern Underwriters v. Cooper, Tex.Civ.App., 138 S.W.2d 563 , par. 10; Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738 , par. 1, writ refused; Traders & General Ins. Co. v. Wright, Tex.Civ.App., 144 S.W.2d 626 , par. 4, writ refused; Postal Mut. Indemnity Co. v. James, Tex.Civ.App., 154 S.W.2d 148 , par. 2; Hartford Accident & Indemnity Co. v. Vick, Tex.Civ.App., 155 S.W.2d 664 , par. 1. We are of the opinion that this latter rule is the better one.” (Emphasis added.) It is significant to note that in the group of cases cited for following the better rule is Southern Underwriters v. Parker, supra [ 129 S.W.2d 741 ], The court in that case quoted with approval as follows: “All of appellee’s evidence tended to establish the alleged injury on October 9, 1933, and no other. Appellant’s testimony was to the effect that appellee received no injury on October 9, 1933. The whole controversy centered around the alleged bodily injury of appellee on October 9, 1933. We do not see how the jury could have been misled to any extent by this issue. There was no claim made by appellant that appellee was injured on some other date than the one alleged by him, * * Exactly the same situation is true in our own case. All of appellee’s evidence tended to establish the alleged injury on August 7, 1956, and no other. Appellant injected into the case a prior physical disability which required a trial amendment to the pleadings that alleged in the alternative that in the event he be mistaken in alleging that all of his own disability and incapacity was a direct and proximate result of the injuries received on or about August 7, 1956, and in that event only he alleged that he seriously aggravated a previously existing physical condition, which, coupled with the injury on that date caused him to be totally and permanently disabled under the Provisions of the Workmen’s Compensation Act of the State of Texas. There was no claim or testimony of any one that appellee was injured on some other date than the one alleged by him, and I do not believe the West case relied on in the majority opinion is analogous to our case. That case held “the evidence conclusively shows that defendant in error did not sustain the injury described in the petition.” [ 126 S.W.2d 511 ] The evidence of Dr. Estes in our own case shows conclusively appellee did suffer the injury complained about and for which the jury permitted him to recover. (Emphasis added.) I believe the issue and definition given was proper under the record in this case and the authorities above cited. But in any event appellant has not shown any injury such as to justify reversal. Both doctors testified appellee was suffering from a congenital defect which made him more susceptible to prostate trouble. Doctor Estes testified his disability was due to the injury received on August 7, 1956, while working at the oil mill, while Doctor Payne testified in effect that any disability he had was due to prostate infection. It is obvious that the jury believed Doctor Estes’ theory of appellee’s disability because they gave him more disability than the evidence would have allowed under any theory of the case for incitement, acceleration, or aggravation of any previous disease. Certainly I cannot see how it could be said that the argument constituted reversible error. The majority opinion cites no case in support thereof and I have not found one with a record even akin to this one where similar argument was held to be reversible even- before our new rules were *352 promulgated. If the issue and instruction was substantially correct, and the Supreme Court in the cases above cited have held that such an issue and instruction is correct, the deductions made in the argument could not be such as to send this case back for another trial. Since Rules 434 and 503 of Vernon’s Annotated Texas Statutes became effective a much more onerous burden rests upon appellant in reversing a case upon the ground that the trial court has committed an error of law in the course of the trial. In Vol. 31, No. 1, page 17, Texas Law Review, Justice Calvert of our Supreme Court, in writing on “The Doctrine of Harmless Error in Texas” has said, in speaking of the trend the Supreme Court has followed since such rules became effective, “The court seems to be developing, slowly, but surely, a policy of refusing to set aside or reverse judgments for errors of law committed during the trial unless in the sound judgment of the court the errors contributed in a substantial way to bring about an unjust result.” The same judge wrote substantially the same rule in Walker v. Texas Employers’ Insurance Association, 155 Tex. 617 , 291 S.W.2d 298 , 301 when he said: “Before an error may be made the basis of reversing a trial court judgment the appellate court must be satisfied that the error complained of ‘was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case.’ Reversal may not be predicated upon a simple showing that error occurred and that the jury returned a verdict in some respects favorable to the party, the error was reasonably calculated to help. If it could, the further provision of Rules 434 and 503 that it must also appear that the error 'probably did cause, the rendition of an improper judgment’ would be meaningless and pointless.” The only possible way the majority opinion can justify holding the errors, if any, contributed in a substantial way to bring about an injust result, would be to say Doctor Estes’ testimony is not entitled to belief. The jury has already decided that issue in favor of the evidence given by Doctor Estes, and this court has no legal right to resolve itself into a trial court and pass on the credibility of witnesses. It is my belief that the judge below tried the case carefully and that under the rules of law heretofore announced and approved by our Supreme Court this case should be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5023290. Public record. Not legal advice.