Mixon v. National Union Fire Insurance Co. of Pittsburgh, Pa.
806 S.W.2d 332
Tex. App.
1991
Check Treatment

*1 reason ... is therefore, attained those obligated decisions judgment to render which right declare that stores, vested in a favor of the judgment which is the contractor, laborer, or materialman under that the trial court should have rendered. laws, though mechanics’ lien Garcia, even not Tobin v. 159 Tex. 316 S.W.2d perfected lien, assignable, as pass- (1958). is claim, es with the assignee and that the The of the trial court is re- thereof validly proceed complete versed. We render that the indi- and enforce the Lumber, lien.” Shoshoni appellants vidual following recover the 24 P.2d at 697. The court then distin- appellees, amounts from jointly and sever- guished Market, aligned National itself J.W.D., ally: $2,465.10; Money Inc.— with Finch and the National Market dis- Store, $4,315.08; and Crestview Mini- Inc.— sent, that, “by and concluded indorsing Mart, $4,796.09; max Food ap- each Inc.— checks, these payees labor in- thereof pellant prejudgment shall recover interest tended equitable assign- to and did make an foregoing on the amounts at the rate of ment, indorsees, right to their of the per annum from the dates on 10% which payees had to have the claims the checks respective their bond claims were made to represented paid by surety, as it had the judgment. date of this Court’s Appel- agreed to do when the contractor’s funds lants, jointly, shall also recover the follow- failed to meet them.” 24 P.2d at 701. appellees, from jointly severally: Finally, Miller, Georgia attorney’s Court of $5,358.75, fees in the amount of Appeals equitable plus $1,000.00 denied relief to an as- attorney’s additional fees signee procedural grounds. appeal While ac if supreme further is taken to the knowledging Lumber, court; Finch and post-judgment Shoshoni interest on the entire the court Georgia proce held that under per at the rate of annum 10% recovery equitable dure a in an assignee’s from the date of this Court’s “depend upon equitable own name would paid; until and all costs of court. principles and equitable jur the exercise of beyond city

isdiction” that of the plaintiff sought

which the had relief. Mil

ler, Therefore, 123 S.E.2d at 720. we view distinguishable present

Miller as from the

case. that,

We conclude on the dishonor checks, MIXON, wage Stephen Appellant, of the laborers’ the stores not assignees became of the laborers’ un claims, derlying wage eq but also became NATIONAL UNION FIRE INSURANCE assignees right uitable of the laborers’ PITTSBURGH, PA., Appellee. CO. OF pursue payment from the contrac No. payment Accordingly, tor’s bond. 2-89-266-CV. the sum mary judgment bonding in favor of the Texas, Appeals Court addition, company must be reversed. Fort Worth. summary judgment we have reviewed the record and are convinced that the stores March 1991. presented proof they conclusive had Rehearing April Overruled 1991. statutory requirements met the to recover presented, in on the bond. The stores also affidavits, adequate form of uncon proof attor

tested their reasonable trial, $3,858.75 through

ney’s were fees $1,500.00

plus appealed if to the court $1,000.00

appeals, plus ap an additional if are,

pealed supreme to the court. We *2 Friedman, P.C., Jack &

Dushman Friedman, appellant. for Jones, Bates, O’Neill, Hall & Camp, Green, Barry S. for John W. Greene appellee. MEYERS, FARRIS, HILL

Before JJ. evidentiary questions; (3)

OPINION and Mixon is not entitled to recover for a HILL, Justice. since he suffered what is classified as Stephen appeals from a specific injury and did not suffer a con- nothing that he take in this workers’ com- general injury any current that led to inca- pensation case that resulted from an pacity. suffered Mixon in scope the course and employment. of his found that point contends in of error *3 permanently Mixon was partially and inca- number one that the by trial court erred pacitated, that incapacity the was limit- submitting question three, number in that ed to the use of the left arm. Because of quired as to incapacity whether his was payments credits due to Aetna for made to arm, limited to the use of his left because it prior trial, Mixon or on his behalf to the trial, is an inferential rebuttal issue. At judgment trial court entered a that Mixon only objection Mixon’s was that the submis nothing, except take for reasonable and sion contrary of the issue was to the evi necessary expenses relating medical to the dence because all of the evidence related to injury. grant The trial court did not Mix- injury an to his shoulder. Because Mixon’s judgment on’s for motion non obstante objection objection at trial is not the same points error, veredicto. four of Mixon presents appeal, he on pre no error is (1) contends that the trial court erred in: Republic-Vanguard served. See In Life submitting three, question inquir- number Walters, 415, 728 surance v. S.W.2d 419- incapacity whether his was limited to (Tex.App. 20 no [1st Dist.] —Houston arm, the use of his left because it is an writ). point overrule We of error number issue; (2) inferential denying rebuttal re- one. covery jury’s based on the affirmative an- point Mixon in asserts of error number question any general to that swer because failing three that the trial court erred in to nerves, injury body to the or its which then grant his motion for non obstan- extremities, only may affects the use of the question te veredicto because number “general incapacity” continue to abe under three was an inferential rebuttal issue that meaning the of the Texas Workers’ Com- placed contradictory an additional and bur- pensation Act if it in results some loss of proof upon den of him. (3) earning capacity; failing grant to the complaint A that the motion for non obstante veredic- trial court (4) to; assessing against failing grant erred in to a motion for court costs direct governed ed verdict or by Mixon. This case is TEX. non obstante vere- only points dicto raises “no evidence” for REV.CIV.STAT.ANN. art. now re- purposes appeal. Bell pealed. Southwestern Sims, (Tex. 861 Tel. Co. v. S.W.2d We reform the to assess costs 1981, writ). App. no [1st Dist.] —Houston of court to National Union because Mixon complaining Mixon is not about the suffi party” a the mean- “successful within evidence, only propriety ciency of the the ing of Rule 131 of the Texas Rules of Civil question as an inferential of the rebuttal though he take- Procedure even received a noted, previously Mixon issue. As we have nothing judg- the judgment. We affirm preserve issue. failed to error as to that (1) ment as reformed because we hold that: object Any effort to after the trial would any Mixon error as to the waived submis- timely. point not have been We overrule jury question number three on sion three. of error number argument it an infer- basis of his that was argues point of error number issue since he failed to ob- ential rebuttal basis; (2) denying the trial court erred on that two that ject to its submission ques- to recovery him based on answer may raise the inferential rebut- not any general in- judg- tion three because by of a motion for number tal issue means nerves, which jury body or its pur- Mixon’s ment non obstante veredicto since of the extremi- only the use post-trial is to raise then affects pose of such a motion ties, incapac- agree holdings in all of “general to be We with the continue meaning find to be ity” under the of the Texas Work- those cases and do not them holding in some Compensation Act if it results in this case ers’ inconsistent with our earning capacity. loss of case Mixon has shown because in this might in any have resulted injury one that in undisputed It is that Mixon was held incapacity, injury that we have 25, 1987, jured job February on the specific injury. He therefore failed to be a As he suffered a dislocated shoulder. a concurrent show noted, we have found that any incapacity. could have resulted We incapacity caused to Mixon’s point overrule of error number two. his left shoulder was limited to the use of Compensable injuries into arm. are divided number point Mixon contends in error classes, general spe injuries main two assessing trial erred in four Surety injuries. Casualty cific Aetna against he the costs of court him because Moore, 183, 185 Company S.W.2d right his to future medical ex- recovered (Tex.1962). injuries compensable All must though penses, he otherwise received even *4 general injuries compensated as unless be take-nothing judgment. a Compensation the statutes classi Workers’ 131 of Texas of Rule the Rules Civil fy subject specific compen as them the of par provides Procedure that the successful a injury sation. Id. at 185. An outside of ty adversary to a of suit shall recover his specific disability that causes that member therein, except all costs incurred where specific is confined to a member is entitled provided. party” A otherwise “successful specific compensation. to Id. at 187. We compe is one who obtains a of a interpret principles the to outlined Moore right. vindicating civil of tent court a claim therefore, injury, mean that an would such Packers, 138, Perez v. Baker 694 S.W.2d specific compensated injury, be as a not but 1985, (Tex.App. 143 [14th Dist.] regard general injury, as to as a without —Houston n.r.e.); Ranger ref’d v. Ins. writ Lovato a prove whether the worker was able to Co., 34, (Tex.Civ.App.— 597 S.W.2d 37 earning capacity. loss of 1980, n.r.e.). Amarillo writ ref’d contending may injury In his that general injury, classified as a also be brought by This case was National relies on the cases of v. Texas Em Rivera appeal ruling as from a final of Union an Ass’n, (Tex. ployers’ 837 Ins. 701 S.W.2d Accident of the Industrial Board Texas 1986); McCartney Casualty v. Aetna & awarding compen Mixon certain worker’s Co., (Tex.1962); and Surety 362 S.W.2d 838 alleged sation benefits. National Union Co., Chapa Fire United States Ins. wholly erroneous and that award Christi (Tex.App. Corpus S.W.2d 823 — fact, unjust, in law and and should both n.r.e.). writ ref’d counterclaimed, alleg canceled. Mixon be seeking com Chapa, Appeals injury that his and workers’ In the Court of held benefits, including medical bene specific injury pensation there a a con- where is Union, re- in its answer to Mix- general injury can fits. National current the worker counterclaim, alleged produces the several affirma injury for the on’s cover defenses, including an assertion that longest period incapacity greatest of or the tive solely by In disease any incapacity was caused Chapa, benefits. S.W.2d at 826. to prior or McCartney, the Texas Su- or sustained Rivera injury, preme injured subsequent to the date of Mixon’s held when an Court employment his connected to employee proves specific to and was not a verdict, jury’s Under the body also a on that date. member concurrent benefits, entitled to the Mixon was found to be injury, consider take-nothing judgment combined, a be unsegregated gen- of his received effects Union. He injuries assessing his of credits due to National specific cause eral and 839; did, however, and nec Rivera, recover “reasonable incapacity. 701 S.W.2d at relating to this essary expenses medical McCartney, 362 S.W.2d at 840. provided by injury as the Texas Workers’

Compensation Statutes.” Because Mixon parte Wayne Ex Bert De LANE a/k/a competent Wayne obtained a Shepard. De nature, vindicating a claim of right, civil in No. 2-90-235-CR. party” he was a “successful within Texas, of Appeals Court Therefore, terms of Rule 131. the trial Fort Worth. assessing court erred in of court costs March 1991. against him and not Union. National See Perez, at 694 S.W.2d 143. sustain We Rehearing Overruled June 1991. point of error number four. provide reform the

We to charged of the trial costs court are Fire Company

National Union Insurance affirm as reformed. judgment,

view of the reformation of the appeal

one-fourth of the are costs on

charged to National Fire Insurance Union charged

Company, with remainder

Stephen Mixon.

FARRIS, Justice, concurring. *5 disagree holding majority

I with general injury, suffer a I

Mixon did not majority

concur in the result. As

notes, undisputed it is Mixon suffered injured

a dislocated shoulder when he was job. jury finding

on his inca-

pacity limited to left arm the use of his change inju-

does not nature of Mixon’s

ries; general and he suffered concurrent

specific injuries. complaints

I concur because Mixon’s

appeal present no error for our considera Supreme de

tion. The Texas Court has questions addressing how

scribed be Riv

these issues should submitted. See Ass’n, Employers’ v. Texas Ins.

era (Tex.1986). 837, 838-39

S.W.2d proper

Because neither tendered questions objected nor of these

submission question, question three as an inferential judg- preserved and the

he has not error trial court be affirmed.

ment of the should