Court of Appeals of Texas,

Eastland.

TEXAS HEALTH ENTERPRISES, INC., Appellant

v.

Rose GAINES, Appellee.

No. 11–95–052–CV.

|

Aug. 29, 1996.

Attorneys & Firms

Roy B. Longacre, for Texas Health Enterprises, Inc.

Lance Hall, for Rose Gaines.

Panel consists of: ARNOT, C.J., and DICKENSON, J., and WRIGHT, J.

OPINION

JIM R. WRIGHT, Justice.

*1 This is an appeal from a lawsuit brought by an injured worker against her employer, a workers’ compensation non-subscriber. In accordance with the findings of the jury, the trial court entered judgment against the employer in the amount of $186,681.36. We reverse and remand.

Appellee was employed as a nurse’s aide at the Holiday Retirement Center. Appellant was the owner of that retirement center. Appellee’s job involved, among other things, moving and turning bedridden patients. Appellee alleges that she injured her back while engaged in this activity and that her employer should compensate her for those injuries.

In its Point of Error No. 3, appellant maintains that the trial court erred in refusing to include within the jury charge appellant’s requested instruction on proximate cause. Appellant’s request included an instruction on sole proximate cause. The proximate cause instruction which was submitted to the jury did not contain specific provisions relating to sole proximate cause. Appellant claims that the issue of sole proximate cause was raised in the pleadings and by the evidence and that, therefore, the trial court should have included the requested instruction in the court’s charge.

Before appellee could recover from appellant, it was incumbent upon appellee to allege and prove that appellant was negligent in some manner that proximately caused her injuries. Werner v. Colwell, 909 S.W.2d 866 (Tex.1995). The only defense available to appellee’s claim was either: (1) that appellant was not negligent or (2) that some act of appellee was the sole proximate cause of the injuries. See Texas Farm Products Company v. Stock, 657 S.W.2d 494 (Tex.App.-Tyler 1983, writ ref’d n.r.e.).

Sole proximate cause is an inferential rebuttal issue. Heritage Manor, Inc. v. Tidball, 724 S.W.2d 952 (Tex.App.-San Antonio 1987, no writ). Formerly, inferential rebuttals were submitted in special issues. The inquiry was made as to whether a party had disproved the existence of an essential element of another issue by proving a contrary or an inconsistent position. See Select Insurance Company v. Boucher, 561 S.W.2d 474 (Tex.1978); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824 (Tex.App.-El Paso 1993, writ den’d); Fusco v. Birdville Independent School District, 609 S.W.2d 648 (Tex.Civ.App.-Eastland 1980, writ ref’d n.r.e.). Inferential rebuttal issues are no longer submitted as inquiries to the jury but, rather, are now submitted to the jury in the form of instructions. Reid v. Best Waste Systems, Inc., 800 S.W.2d 644, 645 (Tex.App.-Houston [14th Dist.] 1990, writ den’d); see also TEX.R .CIV.P. 277; 4 McDONALD, TEXAS CIVIL PRACTICE § 22:29 (rev.1992).

The function of an explanatory instruction is to aid and assist the jury in answering the questions presented to them. Union Oil Company of California v. Richard, 536 S.W.2d 955 (Tex.Civ.App.-Beaumont 1975, writ ref’d n.r.e.). If there is some evidence pertaining to an inferential rebuttal issue, the trial court has a duty to submit such explanatory instructions thereon as are proper to enable the jury to reach a just verdict. Charter Oak Fire Insurance Company v. Taylor, 658 S.W.2d 227 (Tex.App.-Houston [1st Dist.] 1983, no writ); see also Reinhart v. Young, 874 S.W.2d 773 (Tex.App.-Houston [1st Dist.] 1994), aff’d, 906 S.W.2d 471 (Tex.1995). The sufficiency of those instructions is left largely to the discretion of the trial court. Mobil Chemical Company v. Bell, 517 S.W.2d 245, 256 (Tex.1974); Home Insurance Company v. Gillum, 680 S.W.2d 844, 849 (Tex.App.-Corpus Christi 1984, writ ref’d n.r.e.).

*2 Here, the negligence of appellee would defeat her recovery if that negligence were the sole proximate cause of her injuries. Texas Farm Products Company v. Stock, supra. Appellant’s pleadings raise the issue of sole proximate cause. If appellant presented some evidence on that issue, then appellant was entitled to have that theory considered by the jury. Charter Oak Fire Insurance Company v. Taylor, supra.

Appellee testified that she was a certified nurse’s aide. A part of appellee’s job with appellant was to lift and turn some 42 bedridden residents three times each night. Appellee was assisted in this operation by another aide. The procedure involved both aides working together to lift and turn the resident. It was upon one of these occasions that appellee claims that her back was hurt.

Prior to the time that she began working for appellant, appellee had worked at Kerrville State Hospital. There, she had received training in the proper body mechanics of lifting, moving, and transferring patients. On one occasion, she had hurt her back while lifting a patient without assistance.¹ After she began working for appellant, appellee received further training and became a certified nurse’s aide. Appellee executed various documents while in the employ of appellant. In those various documents, appellee acknowledged that she had been trained in and fully understood proper lifting and moving techniques. She also acknowledged that she had been informed that she was not to lift anything that she thought could not be lifted safely. Appellee further acknowledged that she was to ask for assistance when she believed a patient could not be moved solely by her and that she was to wait for that assistance. Again, appellee testified that the aide who was assisting her on the night of the alleged injury was not helping her as she should. Therefore, according to appellee, it was incumbent upon appellee to do most of the lifting and turning. Although appellee thought that she was not receiving proper assistance, she did not request assistance from any other source. Appellee claims that this is when she hurt her back.

The issue of sole proximate cause was raised by the pleadings, and it does find support in the evidence. Therefore, the trial court had a duty to instruct the jury on that theory. Charter Oak Fire Insurance Company v. Taylor, supra; see also Reinhart v. Young, supra. The instruction was necessary and proper to enable the jury to render a just verdict, and appellant had tendered a substantially correct instruction. Because this deprived appellant of a legal theory available to it, the error is not harmless. Charter Oak Fire Insurance Company v. Taylor, supra; see also Rule 277. The third point of error is sustained. In view of our disposition of this point of error, we do not reach appellant’s remaining points of error.

The judgment of the trial court is reversed, and the cause is remanded to the trial court for a new trial.

	Footnotes
1		Although appellant did plead “sole cause,” as that term relates to “producing cause” (as opposed to “proximate cause” and “sole proximate cause”), it did not bring that question forward on appeal.