CITY OF DALLAS,FROM A DISTRICT COURT APPELLANT, v. OTIS DAVIS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00952-CV
 
CITY OF DALLAS,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
OTIS DAVIS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, ROWE AND OVARD
OPINION BY JUSTICE OVARD
MAY 22, 1989
 
        The City of Dallas appeals from a judgment on a jury verdict of total and permanent incapacity for Otis Davis in a worker's compensation case. We summarize the City's five points of error, in which the City contends that the trial court erred: by failing to submit the definition of sole cause; in entering the judgment because the jury's finding that the incapacity began on July 9, 1984, and had a permanent duration was against the great weight of the evidence; and by commenting on the weight of the evidence in the reading and submission of the charge to the jury. We affirm the trial court's judgment.
        Davis was employed by the City in April, 1982. He drove a truck and performed duties of road maintenance. On July 9, 1984, while in the course of his employment, Davis injured his back while helping to stack heavy concrete curbs. After reporting the injury, he sought and received medical treatment. The injury was described as a strain of the ligaments or structures of the lumbar spine. Davis attempted to work, but continued to experience back pain. On January 23, 1986, an operation was performed to alleviate the back pain. Davis experienced additional physical problems immediately after the operation including numbness in his left foot and leg.
        On February 14, 1986, Davis had a heart attack that was unrelated to the July 9th back injury. He was hospitalized for the heart attack for about eleven days and had a convalescence period of over five weeks. Davis appeared to recover from his heart attack, and a doctor specializing in internal medicine found no abnormalities during an April 25, 1986 examination.
        At trial, evidence showed that the only work that Davis had performed since his back injury on July 9, 1984, was driving a dump truck for about four months in 1986. Two doctors testified that they would not allow him to pass a physical for a job that required manual labor. The jury found that Davis was totally and permanently incapacitated.
        In its first point of error, the City asserts that the trial court erred by not including the issue of sole cause in the court's instructions. The City requested the court to instruct the jury that "there may be more than one producing cause of an incapacity, but there can only be one sole cause. If an injury or condition was the sole cause of an incapacity, then no other injury or condition could have been a producing cause." The City contended that the heart attack was the sole cause of any subsequent incapacity. The court denied this instruction but did instruct that producing cause means "an injury or condition which, either independently or together with one or more other injuries or conditions results in incapacity, and without which such incapacity would not have occurred when it did" [sic].
        Whether to instruct the jury on sole cause is within the discretion of the trial court. However, if the evidence tends to establish sole cause, it is the trial court's duty to submit such explanatory instructions as are proper to enable the jury to reach a just verdict. Panola Junior College v. Estate of Lois Lee Thompson, 727 S.W.2d 677, 679 (Tex. App.--Texarkana 1987, writ ref'd n.r.e.). The burden of proof on the issue of sole cause is on the employer. Id. Where no evidence of sole cause is introduced, no issue as to sole cause is raised for the jury. Webb v. Western Casualty and Surety Co., 517 S.W.2d 529, 530 (Tex. 1974).
        We conclude that there is no evidence to raise the issue of sole cause. The doctor treating the back injury and the doctor treating the heart attack both opined that the heart attack was not the sole cause of the subsequent incapacity. Davis testified that he had recovered from the heart attack, and, therefore, the attack could not have been the cause of permanent incapacity. Medical testimony showed that, at the time of trial, Davis could not pass a physical for manual labor because of the back injury and the heart attack, further indicating that the incapacity from the back injury and the heart attack could not be separated.
        The City argues that the issue of sole cause was raised by the following evidence: the heart attack was not related to the injury; permanent scar tissue remained from the heart attack restricting the heart's function; there was a personal and familial history of hypertension; the heart attack required hospitalization and recuperation; and left leg pain resulted from the heart attack. We disagree.
        The City admitted that the back injury of July 9th was a producing cause of Davis's total incapacity. We discern that the evidence relied upon by the City did not raise the issue of sole cause. This evidence indicates only that the heart attack was a producing cause of the subsequent incapacity, not that the heart attack was the sole cause of the incapacity. The applicable standard of review in this case is abuse of discretion by the trial court. See Lumberman's Mut. Casualty Co. v. Garcia, 758 S.W.2d 893, 894 (Tex. App.--Corpus Christi 1988, no writ). The trial court determined in light of the evidence and admissions that the issue of sole cause was not raised. We agree and hold that the trial court did not abuse its discretion in formulating its jury instructions. Appellant's first point of error is overruled.
        In its second point of error, the City contends that the trial court erred in entering the judgment because the jury's finding that Davis's incapacity began on July 9, 1984, and had a permanent duration was against the great weight of the evidence. This multifarious contention was not raised in the City's motion for new trial or its amended motion for new trial as required by Rule 324(b)(3) of the Texas Rules of Civil Procedure. See Schneider v. City of Cuero, 749 S.W.2d 614, 617 (Tex. App.--Corpus Christi, 1988, no writ). Therefore, the City cannot raise this complaint for the first time on appeal. Id.
        Furthermore, there was medical evidence that because of the injury of July 9, 1984, at the time of trial, Davis could not pass a physical for a job that required manual labor and that he was not going to be able to pass any similar physical exam in the future. The medical testimony demonstrated that Davis's total and permanent incapacity for the injury of July 9, 1984, and the heart attack could not be separated. This evidence provided a sufficient basis for the jury's verdict. We hold that the City has not properly preserved this second point of error and that the jury's finding is not against the great weight and preponderance of the evidence. Appellant's second point of error is overruled.
        Summarizing its third, fourth, and fifth points of error, the City further complains that the trial court erred by commenting on the weight of the evidence in the reading and submission of the charge to the jury. While reading the charge to the jury, the court stated:
        Jury Question 1 -- and some of these questions have been answered for you by the court as a matter of law because of various technical rulings that the court has made during the course of the trial and therefore, your answers have already been filled in in the space provided. The court is going to read the entire charge to you even with those answers so that you will have a feel for what you are about.
The trial court then continued to read the charge verbatim. There was no objection by the City to the trial court's explanation to Jury Question 1. In order to preserve error for appellate review, a party must present to the trial court a timely and specific objection. TEX. R. APP. P. 52(a); Tex-Wash Enterprises, Inc. v. Robna, Inc., 488 S.W.2d 504, 505-06 (Tex. Civ. App.--Waco 1972, writ ref'd n.r.e.).
        The trial court then read the following jury questions with the answers already typed in:
JURY QUESTIONS                                                        JURY ANSWERS
 
1         Did Plaintiff receive an injury on or about                 1 YES
        July 9, 1984?
        (Answer "Yes" or "No")
        If "Yes" answer No. 2.
 
2        Was he injured in the course of employment?                        2 YES
        (Answer "Yes" or "No")
        If "Yes" answer No. 3 & No.4.
 
3        Was the injury a producing cause of any total        3 YES
        incapacity?
        (Answer "Yes" or "No")
        If it was, answer No. 3A & No. 3B.
The City argues that these three questions with the answers "YES" typed in constitute an impermissible comment on the weight of the evidence.
        Texas Rule of Civil Procedure 277 states:
        The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict . . .
 
        The court shall not in its charge comment directly on the weight of the evidence . . .
The assumption of a fact that is conclusively shown by the evidence, being uncontroverted, is not an improper comment on the weight of the evidence. Wiley v. Browning, 670 S.W.2d 729, 732-733 (Tex. Civ. App.--Tyler 1984, no writ). The three jury questions and their answers were a comment by the trial court on uncontroverted facts. The City admitted all three issues in their admissions and argument to the jury. We hold that although this unusual instruction by the trial court was a comment on the weight of the evidence, the instruction did not amount to such a denial of the rights of the City as to cause the rendition of an improper judgment in this case. TEX. R. APP. P. 81(b)(1). We overrule the third, fourth and fifth points of error.
        The judgment of the trial court is affirmed.
                                                  
                                                  JOHN OVARD
                                                  JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00952.F
 
 
File Date[01-02-89]
File Name[880952]