Court of Appeals of Texas, Houston (1st Dist.).

Arthur F. SCHMITT, Jr., Appellant,

v.

SERVICE LLOYDS INSURANCE COMPANY, Appellee.

No. 01-89-00894-CV.

|

Nov. 23, 1990.

Before SAM BASS, DUNN and MIRABAL, JJ.

OPINION

SAM BASS, Justice.

*1 Appellant, Arthur F. Schmitt, Jr. (”Schmitt”) sued appellee, Service Lloyds Insurance Company (”Lloyds”) for denial of workers’ compensation benefits. After a trial to a jury, the court, based on the jury’s verdict, rendered a judgment that Schmitt take nothing. Schmitt filed a motion for new trial complaining of the sufficiency of the evidence to support the jury’s finding that Schmitt was not injured in the course and scope of his employment and of the admission of a statement taken from Schmitt by Lloyds. The court denied Schmitt’s motion for new trial.

We affirm.

Schmitt, a 46-year-old mechanic with Brasher Motor Company, testified that on Friday, March 1, 1985, at 2:30 p.m., he was reinstalling a 100-pound transfer case on a pickup truck. While pushing on the case, he felt a pain in his back. He took a 15-minute break, came back, and completed reinstallation of the transfer case. He did not mention the injury to anyone that day. He worked half a day Saturday, and did not say anything about the injury to anyone at work.

During the weekend, he did not have pain if he stood straight up, but he had pain in his left or right side if he leaned left or right. He returned to work Monday with similar pain, but still did not tell anyone at work about it. On Tuesday his wife made an appointment for him with Dr. Marburger for Friday, March 8.

Schmitt testified that on Tuesday March 5, he told Tommy Brasher, his boss, that he was going to the doctor to see what was wrong with his back “since I worked on the truck,” and Brasher did not ask him any questions about how he hurt his back. Brasher denied Schmitt told him of his back injury that day, and testified the first time he learned Schmitt was filing a workers’ compensation claim was when Schmitt was in the hospital October 23, 1985.

Brasher testified that his company had an explicit policy communicated to the employees when they are hired and through shop meetings, that when they are injured, they are to tell their shop foreman or service manager, and when the immediate crisis of the injury is taken care of, they are to go to Bob Kallus to get a form to report the injury. Schmitt testified he knew the company’s policy on reporting injuries.

Brasher thinks his company filled out the report of injury claim form when Schmitt got out of the hospital. It is based on information given by Schmitt and describes the occurrence of the injury as follows: “Working on a four by four pickup transmission. Got sharp pain in right leg and back. Doctor’s diagnosis was arthritis.”

Dr. Marburger testified his records did not reflect that Schmitt gave any indication his complaints were job related. Schmitt acknowledged he did not tell Marburger that he hurt himself on the job. Marburger stated that on March 8, 1985, Schmitt complained of occasional low back pain. Marburger noted Schmitt was obese.

Schmitt testified when he went to Dr. Marburger a month later he told him he still had the same problems. Marburger testified when he saw Schmitt on April 25, Schmitt was complaining of numbness in his thumb and index finger of his right hand, but not of back pain. When Marburger saw Schmitt July 11 he complained of a low back ache and aching in his right leg. Marburger referred him to an orthopedic specialist, Dr. Sadeghpour.

*2 Dr. Sadeghpour testified when he saw Schmitt July 17, 1985, he complained of a pain in his right thumb pain and in his right leg from picking up a heavy object. Based on his records, Sadeghpour could not relate Schmitt’s back problem to any incident occurring in March 1985. Sadeghpour’s medical file was redlined, indicating that someone mentioned to his office that the injury occurred on the job. However, Sadeghpour’s file contained a health insurance claim form indicating the injury did not arise out of Schmitt’s employment. The claim was not submitted as a workers’ compensation claim. Sadeghpour stated Schmitt was relatively heavy and carrying his weight around could, without trauma, lead to a disc problem at the L-4, L-5 level. He also testified disc problems could be related to lifting a bale of hay.

In November 1985, Brasher called Schmitt at home and asked him to come to the shop to give a statement to an insurance adjuster. Before this occasion, Schmitt had hired the law firm of Littleton, Scherbarth, Curry and Associates to represent him in his worker’s compensation claim. Schmitt testified when the insurance man introduced himself, he gave him a card that said “Littleton.” Schmitt said he was not fully aware or who the man was employed by. The adjuster wrote the statement in his own handwriting as he asked Schmitt the questions. When it was completed, the adjuster gave Schmitt an opportunity to look over the statement and make any changes he deemed necessary. Schmitt testified he had some trouble reading the statement. Schmitt signed each of the six pages of the statement. The statement contains scratchouts, beside which appear Schmitts’ initials. Schmitt’s testimony concerning these initials is conflicting. Concerning the initials by the scratchouts on page two of the statement, Schmitt said it was possible he made the initials. Of the initials by the scratchouts on page three, Schmitt first said the adjuster put the initials by what he scratched out, and in his response to defense counsel’s next question, he said that he put them there:

Q: Okay. Page three, there is, looks like one, two, three, four changes on page three of this statement all with the initials next to them. You had an opportunity to make changes on the statement on words you didn’t agree with or things you didn’t agree with, is that correct?

A: Yeah, I know he had scratched out and he put initials on what he scratched out. I don’t know what he scratched out.

Q: Did you initial these changes here?

A: Yeah, I initialed them.

On page five of the statement, Schmitt made a change to the statement in his own handwriting.

Page two of defendant’s exhibit one reflects the statements, “The following Monday or Tuesday I told Tommy Brasher I was having back trouble and I was going to the doctor. I did not say that I hurt it at work.” Page five contains the statement, “I never specifically reported this injury to anyone at the dealership.”

*3 At trial, Lloyd’s counsel used the statement to impeach Schmitt concerning his testimony that on the Tuesday or Wednesday following the incident, he told Tommy Brasher he was going to the doctor to see what was wrong with his back “since [he] worked on the truck.”

At trial, Schmitt, in his testimony, challenged the accuracy of the statement because it did not contain the questions asked by the adjuster, and he was not sure the adjuster accurately recorded what he said.

The court admitted the statement into evidence over Schmitt’s objection that it was illegible, not in Schmitt’s handwriting, and contained highlighting. Another copy of the statement without highlighting was substituted for the highlighted copy.

In his second point of error, Schmitt contends the trial court erred in admitting into evidence defendant’s exhibit one because it was not Schmitt’s statement, was highly irrelevant and prejudicial, and could not properly be used for impeachment.

We hold the statement was admissible. Schmitt acknowledged he was given an opportunity to read the statement and make corrections, which he did as evidenced by the correction made in his own handwriting. Schmitt signed each page and the statement as a whole at the end.

The general rule is that any statement, written or oral, made by a party or on his behalf, which is inconsistent with his present position, may be introduced in evidence against him as an admission. Texas Gen. Indem. Co. v. Scott, 152 Tex. 1, 7, 253 S.W.2d 651, 655 (1952). See also Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 366 (Tex. 1987) (transcript of a meeting of doctors admitted as an admission against them to contradict statements by them at trial that they were unaware of inadequate hospital facilities); Hurley 1954, writ ref’d n.r.e.) (held error not to admit appellee’s written statement, the contents of which he questioned, given to an insurance adjuster to show accident occurred as a result of the locking of the brakes of appellee’s car, as opposed to his contention at trial that it occurred because of appellant’s failure to dim headlights).

Point of error two is overruled.

Schmitt contends, in his first point of error, that the trial court erred in failing to grant his motion for new trial because the jury’s finding that he did not sustain an injury in the course and scope of employment was contrary to the great weight and preponderance of the evidence.

Actually, the jury’s “no” answer was not a finding that Schmitt was not injured in the course and scope of his employment, but was a failure to find that he was injured in the scope and course of his employment, that is, it was a failure by Schmitt, who had the burden of proof on the issue, to carry his burden of proving the fact. See Grenwelge v. Shamrock Reconstructors, Inc., 705 S.W.2d 693, 694 (Tex. 1986); C & R Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex. 1966). A jury’s failure to find a fact essential to plaintiff’s recovery does not need to be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973).

*4 One standard of review is used in reviewing factual sufficiency challenges, regardless of whether the court of appeals is reviewing a negative or affirmative jury finding or whether the complaining party had the burden of proof on the issue. M. J. Sheridan & Son Co., Inc. v. Seminole Dist. ]1987, no writ). The court of appeals must first examine all of the evidence, Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986) and, having considered and weighed all of the evidence, it should set aside the verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, Rego Co. v. Brannon, 682 S.W.2d n.r.e.), the court of appeals may not substitute its opinion for that of the trier of fact merely because it might have reached a different conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

We hold the jury’s failure to find that Schmitt was injured in the course and scope of his employment on March 1, 1985, is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Obviously, the jury did not find credible Schmitt’s testimony, which was the only evidence that he injured his back on March 1, 1985 while working on the pick-up truck.

There is sufficient evidence in the record to call Schmitt’s credibility into question. Schmitt asserts the injury occurred Friday afternoon, but it is undisputed that he worked the rest of that day, one-half day on Saturday, and all of Monday without reporting the injury to anyone at work. Schmitt testified he told Tommy Brasher on Tuesday he was going to see the doctor since he hurt his back working on the truck. However, Brasher denies Schmitt told him this, and testified he did not learn about Schmitt’s contention that the injury was job related until seven months later when Schmitt was in the hospital. The statement, which Schmitt signed, indicates he did not tell Brasher his back trouble originated on the job. Schmitts’ testimony was inconsistent concerning whether he initialed the scratchouts in the statement. Neither of the doctors Schmitt saw concerning his back can, through the histories Schmitt gave them, tie his back trouble to a work related injury occurring March 1, 1985. Both doctors testified he could have developed his back problems because of his weight condition.

We conclude the failure of the jury to find that Schmitt was injured in the course and scope of his employment is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Montes v. Texas Employers’ Ins. Ass’n., 779 S.W.2d 485, 487-88 (Tex. App.–El Paso 1989, writ denied).

Schmitt’s first point of error is overruled.

Lloyds brings a cross-point, requesting damages pursuant to TEX. R. APP. P. 84. We cannot determine from the record that Schmitt’s appeal was brought solely for the purpose of delay.

*5 Lloyd’s sole cross-point is overruled.

The judgment is affirmed.

Do not publish. TEX. R. APP. P. 90.