University of Texas System v. Schieffer , 1979 Tex. App. LEXIS 3489 ( 1979 )

ON MOTION FOR REHEARING

By motion for rehearing, Appellee Schief-fer urges this Court (1) to affirm the judgment of the trial court which awarded ap-pellee damages, or, alternatively, (2) to “remand the cause for a new trial in recognition of the interests of justice.”

As pointed out in this Court’s opinion, we consider the decision of the Supreme Court in Maksyn, controlling in the present case, and judgment of the trial court is properly reversed.

In urging remand of the cause for new trial, appellee invokes Rule 434 and relies on Morrow v. Shotwell, 477 S.W.2d 538 (Tex.Sup.1972). A court of civil appeals, under Rule 434, may not remand a case, instead of rendering judgment, “. . without relying upon a good and sufficient reason for so doing, reflected by the record.” (Emphasis added). Jackson v. Ewton, 411 S.W.2d 715, 718 (Tex.Sup.1967).

The holding in Morrow v. Shotwell, supra, is not helpful to appellee, for in that case the record itself made it clear that due to mutual mistake of the parties in description of the real property, on which plaintiff sought specific performance of a sales contract, plaintiff was unable to recover. But the Supreme Court, in the interest of justice, remanded the cause to permit plaintiff to seek reformation of the contract in which the mutual mistake as to description appeared, as reflected by the record.

In proceeding to further discussion, it should be pointed out that the Supreme Court in Maksyn quoted with approval language of an Arizona appeals case in which the court stated “. . .a disabling mental condition brought about by the gradual buildup of emotional stress over a period of time and not by an unexpected injury causing event is not compensable unless accompanied by physical force or exertion.” (580 S.W.2d 334, 338, col. 2).

In deciding whether rendition is proper, the appellate court will look to the record to ascertain whether the complaining party would be able to recover if the case had been tried on the right theory. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 799 (1951). The record in this case reflects that the evidence of both parties was well developed. Trial continued through at least three days, resulting in a statement of facts consisting of four volumes and comprising more than 700 pages. The record shows that appellee as plaintiff below pleaded “. . . she was subject to extreme stress of her job [and] had suffered as a result of the extreme stress . . . ” Appellee’s testimony plainly evidenced that her emotional problems emanated from the “. . . yelling, screaming type manner, and it was sort of like there were straws and straws and straws and this was the final straw . .”

In her motion for rehearing appellee does not suggest or point to existence of any evidence, other than that appearing in the record of trial, which would justify a new trial on the theory that she suffered accidental personal injury accompanied by physical force or exertion. Jackson v. Ewton, at 411 S.W.2d 719, col. 1. It is obvious that appellee is precluded from recovery on the theory of occupational disease under the holding in Maksyn. As pointed out by the Supreme Court in Benoit v. Wilson, supra, “Rendition of judgment, where a case has been tried upon the wrong theory, should only occur where the record discloses that the complaining party would not have been able to recover had the case been tried on the right theory.” (239 S.W.2d 799, col. 1).

Our review of the extensive record in this case results in the firm conclusion that ap-pellee as plaintiff below would not have been able to recover even if she had conformed to the rule of Maksyn. All of the evidence demonstrates that appellee is entirely reliant upon a disabling mental condition brought about by the gradual buildup of emotional distress, and did not in any manner suffer an unexpected personal injury accompanied by physical force or exertion.

Further grounds are present for rendition of judgment in this case. Appellee requests that if this Court finally reversed judgment of the trial court, the cause be remanded for new trial, at which full development of the facts may be attempted under the correct theory of accidental injury. Appellee’s premise appears to be that the decision in Maksyn deprived her of judgment, and that if she had known she was proceeding on a wrong theory, she would have sought submission of issues under the theory of accidental injury. This is not consistent with the record.

At trial appellee pleaded, in “Plaintiff’s Exceptions and Supplemental Petition,” . . Plaintiff would show that the trauma, injury and accidental injuries which Plaintiff complains of in her Original Petition, was [s/c] both an injury and an occupational disease as those terms are defined by sec. 20 of Article 8306 . . . ” Thus appellee pleaded for recovery under both accidental injury and occupational disease; yet chose to permit without objection to have the issues submitted limited only to occupational disease.

Rule 279, Texas Rules of Civil Procedure, provides that “. . . Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived . . . ” Appellee at trial by failing to request special issues on accidental injury, waived that theory as a ground of recovery. See Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084, 1085 (1928); Watkins v. Texas Employers’ Insurance Association, 534 S.W.2d 443, 445 (Tex.Civ.App. Austin 1976, writ ref’d n. r. e.).

Appellee contends that the decision in Maksyn created exceptional circumstances warranting this Court to remand the cause for new trial. The law pertaining to accidental injury under section 20 of Article 8306 was not changed by the Legislature by the 1971 amendments, and that law has been defined by the courts not a few times. See Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.Sup.1972). Although the decision in Maksyn did perhaps alter the right of appellee to recover under the theory of occupational disease, Maksyn did not affect the theory of accidental personal injury accompanied by physical force or exertion. Appellee’s failure to obtain submission of issues pertaining to accidental injury appears to be based upon knowledge of well established law and recognition that the facts developed at trial rendered the theory of accidental injury an improper ground of recovery.

We find no basis for remand of the cause, and appellee’s motion for rehearing is overruled for the reasons stated.