Texas Employers' Insurance Association v. Henry Duke--Appeal from 12th District Court of Madison County

AFFIRMED

AUGUST 23, 1990

NO. 10-89-173-CV

Trial Court

# 5,977

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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TEXAS EMPLOYERS' INSURANCE ASSOCIATION,

Appellant

v.

HENRY DUKE,

Appellee

* * * * * * * * * * * * *

From 12th Judicial District Court

Madison County, Texas

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Appellant Texas Employers' Insurance Association (TEIA) appealed from a judgment rendered on a jury verdict in favor of appellee Henry Duke for benefits under the Texas Workers' Compensation Act for total and permanent incapacity resulting from an injury he sustained on April 5, 1989 in Waller County, Texas while in the course and scope of his employment with Pool Company/Ensearch Corporation. See Tex.Civ.St. art. 8306. Duke had appealed the award of the Industrial Accident Board by giving the requisite statutory notice and by filing suit in Madison County early on the morning of July 26, 1988. Later that morning TEIA also filed suit in Brazos County to set aside the Board award alleging that Duke's residence was in College Station at the time of the accident.

TEIA filed a Plea to the Jurisdiction, Motion to Transfer Venue and Original Answer in the Madison County suit. In its Motion to Transfer, TEIA objected to venue in Madison County on the grounds that neither the location of the accident nor Duke's residence at the time of the accident was Madison County. See Tex.Civ.St. art. 8307(a). Duke alleged in his response to the Motion to Transfer that Madison County remained his permanent residence and domicile at the time of the accident. The response was accompanied by supporting affidavits. The trial court denied TEIA's Motion to Transfer Venue in November 1988.

Following a jury trial in March 1989 in which the nature and extent of Duke's injuries were in dispute, the trial court rendered judgment on the verdict awarding total and permanent disability benefits to Duke. TEIA appeals on two points of error. Neither questions the legal or factual sufficiency of the evidence in support of the jury's verdict.

TEIA complains in point one that the trial court erred in denying its Motion to Transfer Venue. The Workers' Compensation Act provides that a party desiring to appeal an Industrial Accident Board decision shall ". . . . bring suit in the county where the injury occurred or in the county where the employee resided at the time the injury occurred or, . . . ." Tex.Rev.Civ.Stat.Ann. art. 8307(a). It is uncontested that the accident and injuries occurred in Waller County. The question before this court is whether Duke was a resident of Madison County or of Brazos County when the injury occurred.

At the time of Duke's accident and injuries in Waller County, Duke and his family were living in an apartment in College Station, Brazos County, under a lease for six months. Duke acknowledged at trial that he had a sister living in College Station, either in the same apartment complex or nearby. The lease agreement reflected his prior address as a route and box number in Midway, Georgia. Duke testified that he had moved his family to College Station upon his release from the army in order to gain some privacy from their in-laws who lived in Madison County. They had loaded what possessions they could into their car for the move to College Station, leaving the remainder in storage in Houston. After the move to College Station, Duke began working for Pool.

The record reveals that Duke had been raised and had resided in Madison County for most his life, the exception being the time he spent in the army. His mother and stepfather continue to live in Madisonville, and Duke contends that their home remained his fixed place of abode, or domicile, while he was in the army as well as after the move to College Station and at the time of his on-the-job injury on April 5, 1988. His driver's license shows a Madisonville address. Duke's affidavit accompanying his response to the Motion to Transfer indicated that he had lived for the last ten years with his mother and stepfather in their home at 210 Ivey in Madisonville. Duke further states in his affidavit that he is and has been a registered voter (registration number 6641) in Madison County since 1982, having voted in both general and special elections in Madison County, and that he has never considered himself a resident of Brazos County. He denied at trial ever registering to vote in Brazos County.

The affidavit of the tax assessor-collector of Madison County, which was also attached as an exhibit to Duke's response to TEIA's Motion to Transfer, showed Duke as a registered voter in Madison County since 1982. The tax assessor-collector stated, on her own personal knowledge, that Duke had resided in both his in-laws' home and that of his parents in Madisonville. The record further shows that at the time he sustained the injuries in question, he and his wife were in the process of purchasing the home in Madisonville that they now occupy. According to Duke, their loan was approved four days after his accident. Duke testified that at the time of their move to College Station they were on several waiting lists for apartments in Madisonville and had been attempting to find a house to purchase there. Both Duke and his wife indicated that, even while living in College Station, they spent weekends and most of their spare time in Madisonville.

The evidence before us clearly indicates that Duke and his wife intended to return to what they considered their permanent domicile in Madison County and that they considered their stay in College Station to be nothing more than temporary. We hold that the trial court correctly denied TEIA's Motion to Transfer. Venue was proper in Madison County in light of the evidence of Duke's intent and his ongoing residence there and because Duke was the first to perfect his appeal of the Board's decision by filing suit in Madison County, thus giving Madison County dominant jurisdiction. See Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974); Andrews v. Utica Mutual Ins. Co., 647 S.W.2d 22, 25 (Tex.Civ.App.--Houston [1st Dist.] 1982, writ dism'd). Point one is overruled.

TEIA complains in Point 2 that the trial court erred in refusing to admit into evidence the "Notice of Injury and Claim for Compensation" which had been filed with the Industrial Accident Board. TEIA sought to have the report introduced into evidence at trial to impeach Duke's trial testimony regarding the nature and extent of his injuries, specifically his claimed loss of hearing. Contrary to Duke's testimony, the report makes no mention of any loss of hearing or problems with the left ear. The report does list injuries to Duke's ribs, right arm, kidney, and back with those injuries extending to and affecting his body generally. The jury found that Duke's injury of April 5, 1988 included his right shoulder, neck, head, back and hearing loss and was not confined to his right arm.

A consideration of the entire record reveals abundant evidence, primarily in the form of medical records admitted into evidence at trial, which substantiates Duke's claim of injuries sustained to numerous parts of his body, including but not limited to his right arm, when he was thrown from an oil rig when the cable he was holding slipped, then snapped tight, catching him under his right arm and throwing him a distance from the rig. The medical records not only refer to his complaints of ringing in his left ear as well as a hearing loss but also reflect that Duke suffered a closed-head injury, broken ribs and a large laceration to and soft tissue injury in his right arm, accompanied by loss of right biceps function.

Even if exclusion of the Notice of Injury was error, we do not feel that the jury could have rendered a different verdict had it been able to consider the evidence in question. Even if the Notice of Injury had caused the jury to question or doubt Duke's hearing loss, the fact of injury to other parts of his body and the jury's finding to that effect would not have been affected in light of the other evidence introduced. See Texas General Indemnity Co. v. Scott, 253 S.W.2d 651, 655 (Tex.1953); Saldana v. Houston General Ins. Co., 610 S.W.2d 807, 811 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.). We find and hold that the trial court's exclusion of the Notice of Injury did not amount to such a denial of the rights of TEIA as was reasonably calculated to cause rendition of an improper judgment in the case. Thus the error does not require reversal of the judgment. Rule 81(b)(1), Tex.Rules App.Proc. Point two is overruled.

The judgment is affirmed.

VIC HALL

DO NOT PUBLISHJustice