Draper v. Liberty Mutual Insurance Co. , 1972 Tex. App. LEXIS 2485 ( 1972 )

CHADICK, Chief Justice.

This is an appeal from a final judgment in a Workmen’s Compensation Law case (Vernon’s Tex.Rev.Civ.Stat.Ann. Art. 8306 et seq.). In trial pleadings, it was alleged that Mrs. Vera A. Draper was injured and incapacitated while employed by Campbell Soup Company. Liberty Mutual Insurance Company was sued as the employer’s compensation insurer. Included in the jury’s verdict upon the special issues submitted was a determination in response to Special Issue No. 13 that Mrs. Draper’s incapacity was caused solely by a natural cause or causes, or disease, injuries, or a combination thereof, existing prior to February 18, 1969, the date of her alleged compensable injury.

After a take-nothing judgment was entered in the Trial Court denying Mrs. Draper a recovery, a timely motion for new trial was filed in her behalf. Following the original motion for new trial, in due order and time, an amended motion for new trial was filed. Neither Mrs. Draper’s motion for new trial nor her amended motion therefor mentioned Special Issue No. 13, the verdict thereon or its substance. Approximately two weeks after filing the amended motion, Mrs. Draper caused to be filed a third instrument which was labeled and internally referred to as "Second Amended Motion for New Trial.” In this, the Second Amended Motion for New Trial, the existence, sufficiency and weight of the evidence as it relates to Special Issue 13 is first set up as grounds for new trial. Five days after filing the Second Amended Motion for New Trial, and after having first obtained leave of the Court, Mrs. Draper filed a fourth instrument labeled and described internally as a supplemental pleading to the First Amended Motion for New Trial. This pleading, the fourth in the series, in language identical with that used in the Second Amended Motion for New Trial, set up as grounds for new trial no evidence to support th.e jury’s verdict on Special Issue 13, instiffi-cient evidence therefor, and that such verdict was contrary to the great weight and preponderance of the evidence.

From the foregoing recitations, it is apparent that Mrs. Draper filed an original motion for new trial and amended it one time. Such pleading was authorized by and conformable with Texas Rules of Civil Procedure, rule 329b. That rule provides that a motion for new trial, when required, shall be filed within ten days after rendition of the complained of judgment or other order, and that when an original motion for new trial is filed within the ten-day period, it may be amended without leave of the Court, provided the amended motion shall be filed before the original motion is acted upon and within twenty days after the original motion for new trial is filed. Additionally, in the clearest of language, the rule states that not more than one amended motion for new trial may be filed. Beyond question Mrs. Draper’s second amended motion for new trial and her pleading supplementing the first amended motion for new trial, adding new and previously unstated grounds for new trial, are prohibited by Rule 329(b) and by operation of the rule could not validly present the issues tendered thereby.

In view of the conclusions expressed the jury’s verdict on Special Issue No. 13 is unchallenged as a viable verdict of the jury. The verdict thereon supports the judgment of the Trial Court. The judgment of the Trial Court, therefore, is affirmed.