American General Ins. Co. v. Bailey

• Citation: 287 S.W.2d 290
• Decision Date: 02 February 1956
• Docket Number: No. 12627,12627
• Parties: AMERICAN GENERAL INSURANCE COMPANY, Appellant, v. Emery Eugene BAILEY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 290

287 S.W.2d 290

AMERICAN GENERAL INSURANCE COMPANY, Appellant, v. Emery Eugene BAILEY, Appellee.

No. 12627.

Court of Civil Appeals of Texas, Galveston.

Feb. 2, 1956.

Rehearing Denied Feb. 23, 1956.

Vinson, Elkins, Weems & Searls, B. Jeff Crane, Jr., and L. J. Clayton, Houston, for appellant.

John L. Hill and W. James Kronzer, Houston, Hill, Brown, Kronzer & Abraham, Houston, of counsel, for appellee.

HAMBLEN, Chief Justice.

The facts giving rise to this litigation are disclosed in the opinion of this Court handed down May 6, 1954, and reported in Tex.Civ.App., 268 S.W.2d 528. This Court, in sustaining appellant's points 1 to 7, inclusive, erroneously held that appellee, Emery Eugene Bailey, did not suffer a compensable injury within the meaning of the Workmen's Compensation Law of the State of Texas as defined in Vernon's Ann.Civ.St. Art. 8309, § 1, thereof. Our judgment in accordance with such opinion was reversed by the Supreme Court on June 15, 1955, 279 S.W.2d 315, and the cause was remanded to this Court to pass upon appellant's remaining twenty-two points which were not considered upon originial submission and decision by this Court.

Appellant's points Nos. 8 to 25, inclusive, have been grouped for presentation and are stated in appellant's brief to relate to and raise the question of whether or not appellee adduced any evidence or, in the alternative, sufficient evidence to support affirmative jury findings that he sustained any incapacity as defined by the Workmen's Compensation Act. We overrule appellant's points so numbered.

The factual basis for appellant's contention that there is no evidence, or, alternatively, insufficient evidence, of incapacity rests upon the undisputed evidence that appellee lost no time from work as a result of his accident and suffered no economic loss but on the contrary, by virtue of raises in his pay scale, earned higher wages after his injury than before. This Court, as well as other appellate courts in this State, has held that it is not necessary to show an economic loss in order to recover permanent disbility benefits and that proof that the claimant continues to work and earn money after the alleged injury is but a circumstance to be considered in passing upon the fact question of whether or not he suffered incapacity to work. Traders & General Ins. Co. v. Heath, Tex.Civ.App., 197 S.W.2d 130, writ refused, n.r.e.; Highway Ins. Underwriters v. Matthews, Tex.Civ.App., 246 S.W.2d 214 (writ refused, n.r.e.); Superior Ins. Co. v. Burnes, Tex.Civ.App., 278 S.W.2d 934 (writ refused, n.r.e.).

In support of its contention that in the absence of proof of economic loss there is no evidence of incapacity, appellant relies heavily upon this Court's opinion in the case of Employers Reinsurance Corp. v. Wagner, Tex.Civ.App., 250 S.W.2d 420, writ refused, n.r.e. Some of the language employed by this Court in that opinion admittedly appears to lend support to appellant's contention. We think, however, particularly in view of the action of the Supreme Court upon the writ application, that it must be noted that the order of this Court was one of remand rather than rendition, from which it must be concluded that this Court was passing upon the sufficiency of the evidence rather than the question of no evidence despite the import of the language employed.

In so far as the sufficiency of the evidence in the present case is concerned, we feel that our original opinion points out ample proof by medical witnesses to support the jury verdict of permanent...