Court of Appeals of Texas, Houston (14th Dist.).

Michael Shawn MAHONEY, Appellant

v.

VIBRATION TECHNOLOGISTS, INC., Appellee.

No. 14–96–01036–CV.

|

July 10, 1997.

OPINION

LEE.

*1 Michael Mahoney allegedly sustained injuries while working as an employee for Vibration Technologists, Inc., (“Vibration”). Vibration is a non-subscriber under the workers’ compensation system. The case was tried to a jury which found in favor of Vibration. Mahoney’s two points of error contend the trial court erred by submitting a defective jury charge and by overruling his motion for a new trial. We affirm.

On January 6, 1993, Mahoney sued Vibration for back injuries he allegedly sustained at work. At trial, Vibration contended that Mahoney was not injured or, if he were injured, he did not sustain the injury at work. Question No. 1 of the jury charge read as follows: Did MICHAEL SHAWN MAHONEY receive an injury on or about October 31, 1991, in the course of his employment with VIBRATION TECHNOLOGISTS, INC.?

Answer “Yes” or “No.”

ANSWER: ____________

“Injury” means damages or harm to the physical structure of the body and such diseases or infections as naturally result from such damages or harm.

The jury answered the above question “No.” The remaining portion of the jury charge was predicated on an affirmative answer to the first question, therefore, the jury left Questions Nos. 2 and 3 of the charge unanswered.¹

On appeal, Mahoney claims the jury charge was defective because it predicated the submission of Question No. 2, the negligence question, on an affirmative answer to Question No. 1.² Specifically, Mahoney argues that Question No. 1 improperly placed the burden on him to show he was injured during the course and scope of his employment.³ He also contends that Question No. 1 was unnecessary because it was subsumed in Question No. 3, the damages question.⁴ Vibration argues that Mahoney has waived his complaint on appeal because he failed to obtain a ruling on his objection to the jury charge. Vibration also contends that the jury charge was not defective.

Even if we were to find Mahoney properly preserved error and the jury charge was defective, reversal of this case would not be warranted. Once an appellate court finds error in the charge, it must then review the pleadings, evidence, and the entire charge to determine whether the error is harmful. Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986). Jury charge error is reversible only if, when viewed in light of the totality of these circumstances, it amounted to such a denial of rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment. Tex.R.App. P. 81(b)(1); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex.1995).

Here, Mahoney cannot demonstrate harmful error.⁵ When the jury answered Question No. 1 in the negative, it explicitly found Mahoney had not been injured in the course of his employment with Vibration. Because the jury found Mahoney sustained no such injuries, then by implication, it also found that he suffered no damages therefrom. Therefore, even if Question No. 1 had been omitted from the jury charge, as Mahoney requested, he would not have been entitled to recover damages.⁶ See Canales v. National Union Fire Ins. Co., 763 S.W.2d 20, 23 (Tex.App.—Corpus Christi 1988, writ denied) (jury charge error is harmless if the net result is that the complaining party recovers zero damages); see also Tate v. Sharp, 831 S.W.2d 899 (Tex.App.—Beaumont 1992, no writ) (where the jury finds no damages, findings on issues of liability are immaterial). Because Mahoney cannot show harmful error, we overrule his first point of error. We further find the trial court did not err by overruling his motion for a new trial. Accordingly, we overrule Mahoney’s second point of error and affirm the trial court’s judgment.

	Footnotes
1		The remaining portion of the jury charge, Questions 2 and 3, were taken verbatim from the Texas Pattern Jury Charge. Question No. 2 asked whether Vibration’s negligence proximately caused the occurrence in question and contained the appropriate definitions of “Negligence,” “Ordinary Care,” and “Proximate cause.” See texas pattern jury charges—general negligence & motor vehicles PJC 4.01, 2.01, and 2.04 (1996). Question No. 3 of the charge asked, in pertinent part, “What sum of money, if paid now in cash, would fairly and reasonable compensate [Mahoney] for his injuries, if any, that resulted from the occurrence in question.” The question then listed five elements of damages the jury should consider before assessing total damages. See id. 7.2.
2		At trial, Mahoney only complained that Question No. 1 of the jury charge was improper. His proposed jury charge consisted of two questions which parroted the language of Questions 2 and 3 of the charge as submitted.
3		Although not necessary to reach the result, we reject Mahoney’s contention that Question No. 1 placed an improper burden of proof on him. In his brief, Mahoney claims a plaintiff is not required to show, as part of a non-subscriber workers’ compensation case, that the injury occurred in the course and scope of his employment. To support his argument, Mahoney cites Yedell v. Holiday Hills Retirement & Nursing Center, 701 S.W.2d 243 (Tex.1985). Yedell does not stand for the proposition Mahoney claims. In Yedell, the Court held that an employee’s injury is compensable even if it was not sustained during the discharge of any specific duty incident to the employee’s employment. Id. at 245. The Court further stated that acts of a personal nature, such as quenching thirst, satisfying hunger, and placing telephone calls, are “incidental to the employee’s service” and any injuries sustained therefrom arise in the course and scope of an employee’s employment. Id. (emphasis added). As we read Yedell, whether an employee’s injury occurred in the course and scope of his employment is a critical factor in determining an employer’s liability in a non-subscriber workers’ compensation case. Furthermore, logic dictates such a conclusion. If an injury does not occur in the course and scope of the employment, the defendant’s status as employer is immaterial and the lawsuit is simply a common law tort action. In such a case, the defendant retains all of its common law defenses. Here, Mahoney based his claim as one arising under the Workers’ Compensation Act. Mahoney’s pleadings also allege that Vibration, as a non-subscriber, waived all of its common law defenses.
4		Mahoney correctly points out that if the trial judge had followed the Texas Pattern Jury Charge, Question No. 1 would not have been submitted to the jury. See texas pattern jury charges—general negligence & motor vehicles PJC 4.1 (and comment to 7.2: “Existence of injury”) (1996). Appellant has cited and we have found no authority that suggests the pattern jury charge has been specifically adopted by the Texas Supreme Court, this Court, or any other court of appeals. Although the pattern jury charge is a useful tool to aid practitioners and judges, we do not believe that any deviation from its suggestions warrants reversal.
5		In his brief, Mahoney argues the definition of the term “injury” in Question No. 1 was harmful because it could have confused and misled the jury. Mahoney did not make any such objection at trial and has therefore waived this complaint. Tex.R. Civ. P. 274; Spencer v. Eagle Star Ins., Co. of America, 876 S.W.2d 154, 157 (Tex.1994).
6		Mahoney’s pleadings did not contain a request for exemplary damages.