Millers Mutual Fire Insurance Co. v. Scott

MOORE, Justice

(dissenting).

I dissent. The jury found that appellee sustained an accidental injury while in the course and scope of his employment resulting in total and permanent disability. Due to a severe injury to his head and subsequent brain operations, he was unable to remember anything occurring on the day of his injury. The majority holds that there is no evidence of probative force to support the jury’s finding of accidental injury in the course and scope of employment.

It seems to me that the majority ignores the well-settled rule that in determining whether a jury verdict is supported by any evidence, the appellate court must view and interpret the evidence in the light most favorable to the plaintiff, disregarding all evidence and inferences therefrom favorable to the defendant. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Hart v. Van Zandt, 399 S.W.2d 791 (Tex.Sup.1965).

I am of the opinion that there is ample, direct and circumstantial evidence to support the jury’s finding. If not, however, I am convinced that facts and circumstances give rise to the well recognized presumption of accidental injury in the course and scope of employment. While the majority recognizes that the presumption is applicable, they hold that the presumption was rebutted because (1) there was evidence raising a question of whether appellee punched the time clock on the morning of his injury and because (2) there was testimony raising an issue as to whether appellee may have been intoxicated. With regard to his failure to punch the time clock, the evidence shows that the clock was frequently out of order and did not always work. The fact that the time clock did not show he punched in is of no significance in that the undisputed proof shows he was on the job at 7:00 a. m. and at 8:00 a. m. With regard to the issue of intoxication, there was a sharp conflict in the testimony of the witnesses. In connection with Special Issue No. 3, inquiring as to whether or not appellee received an injury in the course of his employment, the court instructed the jury as follows: “An injury received while the employee is in a state of intoxication is not in the course of employment.” By answering the issue affirmatively, the jury inferentially found that ap-pellee was not intoxicated. In my opinion the evidence upon which the majority relies is inconclusive and fails to rebut the legal presumption of injury in the course and scope of employment.

If the record contained a jury finding that appellee was intoxicated, I would agree that the judgment should be reversed and rendered because such finding would constitute a complete defense. But such is not the case. The only finding of intoxication seems to have been made by the majority on this appeal, arrived at by disregarding all testimony thereon favorable to appellee.

I would hold that the evidence, together with the presumption, constitutes at least some evidence of probative force to support the jury’s finding. I would affirm the judgment.