Angelina Cas. Co. v. Spencer

• Court: Texas Civil Court of Appeals
• Writing for the Court: R. L. MURRAY
• Citation: Angelina Cas. Co. v. Spencer, 310 S.W.2d 682 (Tex. Ct. App. 1958)
• Decision Date: 13 February 1958
• Docket Number: No. 6164,6164
• Parties: ANGELINA CASUALTY COMPANY, Appellant, v. Mack M. SPENCER, Appellee.

Page 682

310 S.W.2d 682

ANGELINA CASUALTY COMPANY, Appellant, v. Mack M. SPENCER, Appellee.

No. 6164.

Court of Civil Appeals of Texas, Beaumont.

Feb. 13, 1958.

Rehearing Denied March 5, 1958.

Collins, Garrison, Renfrow & Zeleskey, Lufkin, for appellant.

Reavley & Barber, Jasper, for appellee.

R. L. MURRAY, Chief Justice.

This is an appeal from a judgment in the district court of Jasper County in a Workmen's Compensation case.

Appellee Spencer received judgment on the jury's verdict for total disability benefits for 300 weeks. He was injured while working at loading logs onto a railroad car. All the evidence showed he was injured in the course of his employment, but the controversy on the trial and on appeal is in regard to the extent and duration of his disability.

The appellant brings its appeal under six Points of Error.

By the first three points it says that there was no evidence to support the jury's finding that Spencer suffered total incapacity for 300 weeks; that the evidence was insufficient to support such finding, and that the jury's finding of such extent and duration of disability was so contrary to and against the great weight and overwhelming preponderance of the evidence as to be manifestly wrong and unjust, and demonstrated that the jury was actuated by passion, prejudice or some improper influence or consideration in arriving at its answer.

Determination of these three points requires an examination of the evidence. We take the following resume from the appellant's brief:

Regarding the accident and injury, Mack M. Spencer, appellee, testified on direct examination to the effect that he was 44 years old, that his work had been sawmilling, construction work, farming, just common hard labor, that he had sustained two previous injuries on jobs, to the right foot and right knee; that on the date in question he was working under Mr. Ed Bailey, foreman for Southern Pine Lumber Company, near Evadale, where appellee was hooking tongs at the loader; that logs were decked up on the ground by the side of the railroad track, that appellee and another workman each handled a tong on the end of a 90 foot rope attached to the mechanical loader, that each of the two men hooked their tongs in one end of a log and the loader operator pulled the log up to load it onto the railroad car; that appellee went up on a deck of logs and hooked a log which, when pulled by the loader operator, struck the log appellee was standing on and threw appellee headfirst 4 or 5 feet off the deck, a log 'come up that way and struck me right across there in the back; and the one that was on the ground, I struck it right over that eye,' left eye, that appellee supposed that the log that hit him was on the ground, that something hit him but he did not know whether it was a log on the ground but as he was falling something struck him, that when appellee knew anything he had a cut right across the eye, that he hit his head on something and a log hit him in the back, that appellee does not know what happened when he hit the ground and he was unconscious about 45 minutes and didn't know anything until he got to Dr. Poshataske's office in Silsbee.

On cross-examination appellee testified to the effect that Oscar Lee Jones was working as his partner on the occasion in question, also hooking tongs, but Jones did not go up on the deck of logs, that appellee was not positive whether Jones was on the ground or up on the deck; that Mr. Ed Bailey was operating the loader, appellee hooked the particular log and got back out of the way, turned, Mr. Ed pulled and the log or two or three logs that appellee was standing on turned, kicking appellee's feet from under him; appellee did not jump but fell from the deck, right off the end of the deck, headfirst, right down there where there lay a bunch of logs, that there was a space of open ground where appellee went off, and down from the stack or deck from which appellee fell there was another similar stack of logs; appellee does not know how he hit the ground, before he went off the deck or when he fell, something hit him in the back; when he fell, appellee saw a gum log coming up behind him, one he had been standing on, and something struck his back as he was falling, that appellee was going away from the end of the logs when he went off the deck; that as far as he knows or thinks, no log fell on him on the ground, he landed on the ground right in between logs, that some logs in decks run out longer than others and he supposes it must have been that he struck the end of one of those logs, that his head was going toward the end of the other nearby stack of logs, and the cut over appellee's eye could have been from striking one of the logs in the other deck, that appellee was knocked unconscious and recalls no conversation or did not know anything until arriving at the doctor's office in Silsbee.

Regarding his medical treatment, appellee testified further on direct examination to the effect that when first attended by Dr. Poshataske in Silsbee that appellee complained about his head and back; X-rays were made by this doctor and appellee's back was taped up and six stitches taken in the cut on appellee's head; that this tape on appellee's back was 2 inch tape or inch and a half tape and was 6 or 8 inches wide all the way around appellee's back; that appellee did not remain under this doctor's care after that time, but saw Dr. Harris in Pineland on the following day, July 12, 1956, complaining to Dr. Harris of his head and back, that he remained under this doctor's care until sometime in September, 1956, the treatment here consisting of redressing the cut over the eye, removal of the stitches from that cut, heat to the back, tablets or pills; that Dr. Harris removed the bandage or tape from appellee's back about the fourth or fifth visit to this doctor; that he was sure Dr. Poshataske put adhesive tape on his back, that that doctor or his nurse put it on there and that Dr. Harris took it off; that appellee hired his attorney in this case on July 23, 1956, but appellee did not know that compensation was not payable under the law until he had been off from work 14 days; that his attorney in this case referred him to Dr. Allamon, but it was three or four weeks later before appellee went to Dr. Allamon, made only two visits to that doctor, and has been to no doctor for treatment since September, 1956.

As to his bodily complaints at the time of the trial, January 30, 1957, appellee testified in substance that his head bothered him, just a dead ache like a neuralgia headache, that the headache was present principally all the time that appellee did not take something to lull the misery, meaning the little white tablets, that these tablets killed the pain or stopped it, that sometimes the misery lulls when it was real fair and not...