Court of Appeals of Texas, Houston (14th Dist.).
Jimmie Darah BROWN, Appellant,
The NORTH RIVER INSURANCE COMPANY OF NEW JERSEY, Appellee.
July 12, 1990.
On Appeal from the 11th District Court Harris County, Texas Trial Court Cause No. 87-17173.
Before PAUL PRESSLER, CANNON and ELLIS, JJ.
*1 This appeal arises from Jimmie Darah Brown’s suit against the workers’ compensation carrier of her employer in which she claimed her back injury occurred in the course and scope of her employment. The Industrial Accident Board denied her claim, and she challenged the ruling by filing suit in district court. The appellant now brings four points of error regarding the jury’s verdict in favor of the insurance company. We find no merit in the appellant’s arguments and affirm the judgment of the trial court.
In the first two points of error, the appellant claims that the evidence established as a matter of law that the appellant was injured in the course and scope of her employment on or about August 31, 1984, or at the least, the verdict was against the overwhelming weight and preponderance of the evidence. In the third and fourth points of error, the appellant complains that although the objection to certain hearsay testimony was sustained by the court, that hearsay testimony was so prejudicial that the court’s instruction to disregard could not have prevented the jury from considering the testimony, and the defense counsel’s allusion to the hearsay testimony during jury argument was incurable error which caused the jury to render an unfair verdict. The hearsay testimony referred to information from another employee that the appellant hurt her back at home when she got drunk and fell down some steps.
The appellant worked for ARA Services, Inc. as a supervisor of the salad department. She contends that she injured her back on August 31, 1984 when she picked up a box of cans in the storeroom. Two other employees also testified in the trial, one of which was present in the storeroom with the appellant when the injury allegedly occurred. That witness testified that the appellant had been complaining of back pain for a few weeks prior to the day in question. The witness also testified that before August 31, she saw the appellant and the chef horseplaying in the kitchen and heard the appellant state that she had hurt her back after bending down to pick up the chef’s hat. In regard to the incident in the storeroom, this witness testified that the appellant picked up a box of #10 cans and exclaimed that she had hurt her back again.
In the first point of error, the appellant contends that the evidence established as a matter of law that the appellant was injured in the course and scope of her employment on or about August 31, 1984 in spite of the jury’s contrary response to Special Issue Number 2. We disagree. The standard of review on a matter of law point of error requires that we consider only the evidence and inferences tending to support the trier of fact and disregard all evidence and inferences to the contrary. In Re Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex. App.--Houston [1st Dist.] 1988, writ denied).
*2 The record reflects witness testimony that the injury did not occur in the course and scope of employment. The evidence showed that the appellant was involved in a horseplay incident with the chef a prior to the date in question and complained that she hurt her back. Therefore, it was not established as a matter of law that the only time she could have been injured was on the day she picked up the box. Only testimony that is corroborated and undisputed may be established as a matter of law. Texas & Pacific Ry. Co. v. Moore, 329 S.W.2d 293, 295 (Tex. Civ. App.--El Paso 1959, writ ref’d n.r.e.). The first point of error is overruled.
Likewise, we find that the appellant’s second point of error, in which she contends that the jury’s finding was against the great weight and preponderance of the evidence, is not supported by the record. It was the duty of the jury, as the finder of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve the conflicts and inconsistencies in the testimony. The jury has the privilege of believing all, part, or none of the testimony of any witness. Ashley v. Bizzell, 694 S.W.2d 349, 354 (Tex. App.-- San Antonio 1985, writ ref’d n.r.e.).
This court must consider and weigh all the evidence presented and may set aside the verdict only if the verdict is so against the weight of the evidence as to be manifestly unjust. American Home Assur. Co. v. Faglie, 747 S.W.2d 5, 7- 8 (Tex. App.-- El Paso 1988, writ denied). The record reflects testimony from a co-worker that she had complained of injuring her back prior to the incident in the storeroom. Additionally, that witness testified that when the appellant picked up the box in the storeroom, she stated that she had hurt her back again. The other witness testified that the appellant told him earlier that she had injured her back over the weekend. As there is sufficient competent evidence of probative force to support the jury’s finding, it must be sustained. The second point of error is overruled.
In the third point of error, the appellant complains that the hearsay testimony regarding the appellant’s alleged fall at home prior to August 31, 1984 was so prejudicial that the court’s instruction could not have prevented the jury from considering it. This testimony was objected to, and the objection was sustained. However, any error is waived unless the record reflects that the appellant took the proper steps to preserve error. After the objection is sustained, the appellant must request the court to have the answer struck from the record and to instruct the jury to disregard the testimony. City of Denton v. Mathes, 528 S.W.2d 625, 634 (Tex. Civ. App.--Fort Worth 1975, writ ref’d n.r.e.). Since these steps were not followed, any error that might have resulted was waived. The third point of error is overruled.
*3 The appellant contends in the final point of error that the defense counsel’s comment regarding the hearsay testimony during jury argument constituted incurable error and was so prejudicial that the court’s instruction to disregard it could not have prevented the jury from entering an unfair verdict. The appellant did object to the defense counsel’s reference to the testimony and the trial court instructed the jury that they had already heard the court’s ruling on the matter and were only to consider that which was in evidence. We do not find that instruction by the court to be a ruling on the appellant’s objection to the defense counsel’s jury argument. Failure to procure a ruling on the objection waives the complaint. Pilot Life Ins. v. Billings, 641 S.W.2d 644, 649 (Tex. App.-- Tyler 1982, no writ). The appellant’s fourth point of error is overruled and the judgment of the trial court is affirmed.
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