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

Thomas J. RIGGINS, Appellant,

v.

BROACH STATIONS, INC., Appellee.

No. 14-94-00086-CV.

|

Feb. 8, 1996.

OPINION

EDELMAN.

*1 In this personal injury case, Thomas Riggins appeals from a take-nothing judgment entered in favor of Broach Stations, Inc. (“Broach”) on the grounds of (1) jury charge error, (2) improper admission of collateral source evidence, (3) insufficient evidence to support the jury’s finding of no injury, and (4) cumulative error. We affirm.

Riggins sued for injuries he allegedly suffered from slipping and falling on diesel fuel at a Broach service station on January 12, 1989. The jury found that Riggins sustained no injury while at the Broach station on that date.

In the first six of his nine points of error, Riggins complains that, without reasonable basis, the issue of negligence was submitted in the jury charge in separate questions rather than in a single broad form submission. See Keetch v. Kroger Co., 845 S.W.2d 262, 266-267 (Tex.1992). In addition, he argues that this splitting, in effect, required the jury to find negligence twice. He contends that the error was further compounded because the issue of contributory negligence was submitted in broad form, thereby making it easier for the jury to find contributory negligence than negligence, and suggesting to the jury that the plaintiff’s case should be scrutinized more carefully than the defendant’s. Riggins claims that the negligence questions were also not in substantially correct form because they did not accurately reflect a landowner’s duty, and were limited to knowledge of an actual substance on the ground rather than avoiding the risk.

In all jury cases the court shall, whenever feasible, submit the cause upon broad form questions. Tex.R. Civ. P. 277. However, to obtain reversal of a case on jury charge error, an appellant must show harmful error. Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 749-50 (Tex.1980). That is, jury charge error is reversible only if, in light of the entire record, it was reasonably calculated to and probably did cause rendition of an improper judgment. Tex.R.App. P. 81(b)(1); Reinhart v. Young, 906 S.W.2d 471, 473 (Tex.1995). To determine whether an alleged error in the jury charge is reversible, the reviewing court must consider the pleadings, the evidence presented at trial, and the charge in its entirety. Island Recreation Dev. Corp. v. Republic of Texas Sav. Ass’n, 710 S.W.2d 551, 555 (Tex.1986). When the jury’s findings on other issues are sufficient to support the judgment, error in submission of an issue is harmless unless the erroneously submitted issue confuses or misleads the jury. Boatland, 609 S.W.2d at 750. However, error in failing to submit a properly tendered broad-form question is not harmful where the granulated jury questions contain the proper elements of the cause of action. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 260 (Tex.1992).

In this case, the issue of negligence was submitted to the jury in questions two through six.¹ However, question one asked, “[d]o you find from a preponderance of the evidence that THOMAS J. RIGGINS sustained an injury to his back on the 12th day of January, 1989, while at Broach Stations, Inc.” The jury answered “no.” Because of that answer, and because questions two through five were each conditioned on an affirmative answer to the preceding question, the jury did not answer questions two through six. In other words, the jury never reached the questions about which Riggins complains.² Thus, any error in the submission of those questions is harmless because the verdict and judgment were not based on the answers to them. See Boatland, 609 S.W.2d at 555. Accordingly, points of error one through six are overruled.

*2 In point of error seven, Riggins contends that the trial court erred in admitting evidence of his receipt of workers’ compensation benefits. On cross-examination, in response to questions why he had not gone back to the doctor if his condition had grown worse and bothered him, Riggins testified, “I ain’t got no money” … “I don’t have hospitalization.” Over objection, the trial court then allowed cross-examination on Riggins’ receipt of various workers’ compensation benefits, including weekly payments, payment of medical expenses and a lump sum settlement.

The admission or exclusion of evidence is a matter within the discretion of the trial court. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105, 108 (Tex.1985). To obtain reversal of a judgment based on error in admitting or excluding evidence, it must be shown that (1) the trial court committed error, and (2) the error was reasonably calculated to cause, and probably did cause, rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989).

Generally, information concerning collateral sources, such as workers’ compensation benefits, is inadmissible in a suit against a third-party tortfeasor because it is immaterial and “would tend to confuse and mislead the jury in trying the issues of the third-party’s liability.” J.R. Beadel and Co. v. De la Garza, 690 S.W.2d 71, 74 (Tex.App.-Dallas 1985, writ ref’d n.r.e.). The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party and to which the wrongdoer was not privy. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575 (1980). The rule prevents the jury from reducing the amount of actual damages by the amount of the collateral sources. Mundy v. Shippers, Inc., 783 S.W.2d 743, 745 (Tex.App.-Houston [14th Dist.] 1990, writ denied).

However, there is an exception to the rule whereby collateral source evidence is admissible for impeachment purposes when a witness has “opened the door” by giving testimony inconsistent with the receipt of benefits. Id.; J.R. Beadel, 690 S.W.2d at 74. For example, when a plaintiff testifies he is penniless or impoverished, as contrasted from testifying that he needs to work to support himself, the former is inconsistent with the receipt of benefits. Exxon Corp. v. Shuttlesworth, 800 S.W.2d 902, 907 (Tex.App.-Houston [14th Dist.] 1990, no writ).

However, when the jury finds against the claimant on liability and does not reach the issue of damages, then it is not faced with the possibility of offsetting damages with collateral sources, and any error in violating the collateral source rule is harmless. See Castro v. U.S. Natural Resources, Inc., 880 S.W.2d 62, 67 (Tex.App.-San Antonio 1994, writ denied).

In this case, the jury never reached the issue of damages because it found Riggins had sustained no injury on Broach’s premises. Therefore, regardless whether the evidence of workers’ compensation benefits was properly admitted for impeachment, it could not have been used to offset damages, and any error was harmless. Accordingly, point of error seven is overruled.

*3 In points of error eight and nine, Riggins contends that the jury’s finding of no injury was against the great weight and preponderance of the evidence, and was the result of bias and prejudice based on the cumulative error of submitting improper jury questions and admitting evidence of workers’ compensation benefits.

When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence, and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). However, we may not substitute our judgment for that of the trier of fact. Lofton v. Texas Brine Corp. 777 S.W.2d 384, 387 (Tex.1989). Thus, when considering great weight points complaining of a jury’s failure to find a fact, we are not entitled to reverse merely because we conclude that the evidence preponderates toward an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

In this case, there was considerable inconsistent and controverting evidence. Riggins had suffered six injuries to his back, neck, or shoulders prior to the slip and fall that was the basis of this suit. Though he claimed that not all of those injuries were serious, he sought and received medical treatment for each one. Two injuries occurred in the early 1960s when Riggins was in the military. At that time, Riggins learned that he had spondylolisthesis resulting in degenerative arthritis, spina bifida, and a congenital shortening of one leg.³ He received a medical discharge and was given a ten percent disability. He has received monthly disability checks since 1963.

In May of 1987, Dr. Anthony Jorgenson, an orthopedist who was treating Riggins for a 1985 slip and fall, rated Riggins’ disability at sixty percent. Riggins had not told Dr. Jorgenson about his military disability or the diagnosis of his congenital back problems. During his treatment of Riggins for the 1985 accident, Dr. Jorgenson recommended that Riggins undergo a spinal fusion, but Riggins declined. Dr. Jorgenson testified that a spinal fusion would have stabilized Riggins’ back and possibly reduced his disability rating.

Two of Riggins’ fellow employees saw him immediately after the alleged slip and fall at the Broach station. They testified that Riggins had diesel fuel and mud on his clothes but that Riggins did not complain about pain in his back and was not limping. According to one of the employees, Riggins did not know if he was hurt, but was concerned about it. In any event, Riggins completed his truck route and drove home the next day. Riggins’ supervisor testified that on the following day, Riggins stated that his back was sore but that “it would not amount to anything.”

Riggins testified that he was hurt so badly that his wife had to help him out of his truck, but he waited eleven days before seeking medical treatment from Dr. Jorgenson. Riggins claimed that he could not get an appointment sooner, and did not go to a hospital because he wanted to see his personal doctor. Nevertheless, Riggins continued to work until the end of the month. Riggins testified that he then had to quit his job because of back pain, and that the back pain he experienced after this accident was greater than that which he experienced from his previous accidents.

*4 Dr. Jorgenson concluded that this slip and fall exacerbated Riggins’ pre-existing back problems and that Riggins could not work as truck driver as he had before the accident. Dr. Jorgenson gave Riggins an additional fifteen percent disability despite that X-rays of Riggins’ thoracic and lumbar spine showed no changes following this accident, despite that he had seen Riggins only three times in the preceding two years, and despite learning of Riggins’ other injuries and congenital back problems. Dr. Jorgenson testified that the absence of changes in the X-rays did not mean that Riggins had not sustained a soft tissue injury.

On the other hand, Dr. Ronald Corley, an orthopedic surgeon, opined that Riggins did not sustain a new quantitative injury from the accident in this case, and that Riggins was able to do the same work as he had done before the accident. Dr. Corley examined Riggins only once, in August of 1992, and testified that, while Riggins did not give a complete history of his prior injuries, he (Dr. Corley) nevertheless reviewed most of Riggins’ medical records. According to Dr. Corley, after the accident Riggins initially complained of thoracic spine pain, not lumbar spine pain. While he acknowledged that Riggins later complained of lumbar pain and that generally, complaints of greater pain are symptomatic of aggravation, Dr. Corley concluded that Riggins’ thoracic and lumbar spine problems were caused by his prior injuries and spondylolisthesis. In Dr. Corley’s opinion, Riggins had longstanding back problems that were the result of previous injuries.

Riggins and his family testified at length about Riggins’ inability to work after the accident or to help on the family chicken farm as he had before. However, two of Riggins’ post-accident employers testified that Riggins had driven a truck for them. Although one employer admitted he had no personal knowledge what Riggins did after he picked up a load, he stated that he had personal knowledge that Riggins drove a truck when he came to pick up loads at the employer’s Houston location. Riggins and his family also testified about the family’s desperate financial condition. However, Riggins’ tax returns and the evidence of workers’ compensation benefits suggested otherwise.

In addition, Riggins’ supervisor testified that Riggins’ report of the accident stated that it had occurred while he was running to pay the bill at the service station and tried to jump over a mud puddle but slipped and fell in it. At trial, however, Riggins said it happened when he was walking around his truck to check on the driver’s side fuel tank and slipped on some diesel fuel.

Riggins also testified that he reported the accident to the attendant on duty. In his deposition, Riggins had not been able to recall what the attendant looked like but stated that he was not black. At trial, however, Riggins testified that the attendant to whom he reported the accident was Albert Patterson, a black man. Moreover, neither Patterson nor his supervisor, who was also on duty, remembered Riggins or any report of a fall on the date in question.

*5 Aside from giving an incomplete medical history to Drs. Jorgenson and Corley, Riggins admitted that he was also untruthful in employment applications and pre-employment physicals after the accident. Riggins explained that he did so because he was afraid he would not get the jobs. Moreover, in interrogatories answers and deposition testimony given in March of 1991, both of which were read to the jury, Riggins failed to disclose post-accident employment or receipt of post-accident income. However, Riggins listed his post-accident employers in a supplemental interrogatory answer which was also read to the jury.

Ultimately, the jury was the sole judge of the credibility of the witnesses and was free to resolve any conflicts and inconsistencies in the testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). Based on the evidence in this case, the jury could have disbelieved Riggins’ testimony or otherwise concluded that his condition was made no worse by the accident in question. Therefore, the jury’s finding of no injury was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. Similarly, we do not find sufficient cumulative error to require reversal.⁴ Points of error eight and nine are overruled, and the judgment of the trial court is affirmed.

	Footnotes
1		After negligence, ordinary care and proximate cause were defined in the charge, jury questions one through six and the jury’s answers thereto were as follows: QUESTION NO. 1. Do you find from a preponderance of the evidence that THOMAS J. RIGGINS sustained an injury to his back on the 12th day of January, 1989, while at Broach Stations, Inc.? Answer: No. If you have answered Question No. 1 “Yes,” and only in that event, then answer the following question. Otherwise stop. QUESTION NO. 2 On the occasion in question, was there a foreign substance such as oil, grease or fuel on the premises that presented an unreasonable risk of harm to THOMAS J. RIGGINS.” Answer: _____ If you have answered Question No. 2 “Yes,” and only in that event, then answer the following question. QUESTION NO. 3 Did Broach Station, Inc. know, or in the exercise of ordinary care should it have known, that a foreign substance such as oil, grease or fuel, if any, was on the premises?” Answer: _____ If you have answered Question No. 3 “Yes,” and only in that event, then answer the following question. QUESTION NO. 4 Was Broach Stations, Inc.’s failure to remove the foreign substance such as oil, grease, or fuel, if any, negligence? Answer: _____ If you have answered Question No. 4 “Yes,” and only in that event, then answer the following question. QUESTION NO. 5 Was that negligence a proximate cause of the injury in question?” Answer: _____ QUESTION NO. 6 Did the negligence, if any, of THOMAS J. RIGGINS, proximately cause the injury in question? Answer “yes” or “no”: Answer: _____ Questions 7-10 then asked about the respective percentages of negligence, damages, gross negligence, and exemplary damages.
2		Other than for not complying with broad form submission, Riggins did not assign error to the submission of the separate question on injury in question one. In Texas & Pac. Ry. Co v. Van Zandt, 317 S.W.2d 528 (Tex.1958), the Texas Supreme Court said: In a large percentage of personal injury cases-perhaps in a majority-there is no question but that injuries were sustained. In such cases, the conventional issue on damages and accompanying instruction permits the jury in arriving at the amount of damages to be awarded to make an incidental determination of the nature and extent of the injuries suffered. But when the existence of injury is controverted in the evidence, it is not a sufficient submission of that ultimate and vital fact issue, over proper objection, to inquire whether a particular negligent act or omission was a proximate cause of plaintiff’s injuries, if any, or what amount of money will compensate the plaintiff for the injuries, if any, sustained by him as a proximate result of the defendant’s negligence, if any. In such cases a special issue directly and unequivocally inquiring whether injury was sustained should be submitted. Id. at 530. We have found no case in which the Court has re-considered this issue since adoption of broad form submission.
3		According to the medical testimony, spondylolisthesis is a condition whereby the front and back parts of the vertebra are not connected by bone, thereby allowing the vertebra to slip forward. The condition is caused by trauma but may be asymptomatic depending on the age of the patient and the nature of the trauma. Spina bifida is a congenital defect whereby the roofs of vertebra are left open.
4		See generally Klein v. Sporting Goods, Inc., 772 S.W.2d 173, 179 (Tex.App.-Houston [14th Dist.] 1989, writ denied) (stating that when several errors are found but are not considered reversible, the sum of those errors could present cumulative error requiring reversal).