Associated Employers Lloyds v. Self

• Decision Date: 25 January 1946
• Docket Number: No. 13661.,13661.
• Citation: Associated Employers Lloyds v. Self, 192 S.W.2d 902 (Tex. App. 1946)
• Parties: ASSOCIATED EMPLOYERS LLOYDS et al. v. SELF.
• Court: Texas Court of Appeals

192 S.W.2d 902

ASSOCIATED EMPLOYERS LLOYDS et al. v.SELF.

No. 13661.

Court of Civil Appeals of Texas. Dallas.

January 25, 1946.

Rehearing Denied February 22, 1946.

Appeal from District Court, Grayson County; Jesse F. Holt, Judge.

Suit under the Workmen's Compensation Act by B. F. Self to set aside an award of the Industrial Accident Board in favor of Associated Employers Lloyds, as compensation carrier of the Fant Milling Company.From a judgment in favor of plaintiff, the defendants appeal.

Affirmed.

Touchstone, Wight, Gormley & Touchstone, of Dallas, and A. F. Nossaman, of Sherman, for appellants.

Caldwell, Baker & Jordan, of Dallas, for appellee.

BOND, Chief Justice.

Appealing from an adverse decision of the Texas Industrial Accident Board, appelleeB. F. Self filed this suit in a district court of Grayson County against appellant Associated Employers Lloyds and its attorney in fact, J. M. Ferguson, as compensation carrier of Fant Milling Company, a corporation which owns and operates a mill in Sherman, Texas, for injuries alleged to have been received by him at said mill.Appellee, on January 24, 1944, in due course of his employment was engaged in pushing a two-wheel truck loaded with four 100-pound sacks of shorts (feed products) down an incline, or ramp; and, in an effort to lift and hold back the heavily laden truck, his feet suddenly slipped causing him to fall backward to the floor with great force and violence as to injure the lower portion of his back.

The cause was submitted to a jury, and, on findings that appellee sustained injuries on the occasion in question resulting in partial total incapacity to labor to the extent or degree of 65 per cent for 223 weeks, judgment was entered for the statutory complementary amount in favor of appellee.Then, on motion for new trial, the court heard evidence as to the misconduct of the jury, thus overruling the motion.

Appellant contended in the court below, and urges here, that the fall of appellee caused no compensable injury; and, if so, any injuries that he may have sustained were temporary and partial, hence judgment should have been entered in its favor; and further, that the misconduct of the jury, in agreeing on legal results that would obtain to answers to issues submitted and then answering such questions in a way to carry out such agreement, justified a new trial; hence assigned error in the action of the trial court in overruling its motion.These contentions bring us to the task of a full review of the evidence, and of according to the judgment of the court below all testimony in its most favorable light from appellee's viewpoint, disregarding all evidence and inferences contrary thereto.

The injured employe, B. F. Self, testified to the effect that his injuries occurred when he lost his footing while going down an incline with a two-wheel truck loaded with 100-pound sacks of shorts; that when his foot slipped he fell, carrying the weight of the load with him, and struck the small of his back on the platform; that after the fall he felt dizzy, and when he started to get up he felt a pain in the small of his back causing him to be unable to straighten, — felt like it was broken or bruised, and that he was unable to continue his work because of feeling dizzy and having the pains in his back.Soon after the fall he went home and to bed, but could not rest or sleep because of severe pain and nervous condition.On the next morning he went to the mill, got permission to go to a doctor, and did go to Dr. Enloe in Sherman, Texas, who, after having him remove his clothes, diagnosed his troubles, gave him a "hypodermic shot with a needle in his back", and then directed him to return home and go to bed.That when the hypodermic injection died out, he bathed his back with alcohol, but continued to suffer pain and nervousness.On the second or third day after the injury, appellee went back to Dr. Enloe who put on him an electric pad, and thereafter went back to work, doing light jobs about the mill; worked a half day, when his back began hurting him so badly that he had to quit and go home.On the third or fourth day he went back to Dr. Enloe who taped up his back with adhesive-tape from his waist down, which seemed to brace his back some; and then the doctor told him to go home and lay off for three weeks.That he followed the instructions of Dr. Enloe, but continued to suffer pain in his back, could not reach down and pick up anything from the floor, and when he attempted to bend "it seemed like somebody had rammed a knife in his back"; that the pains extended from his back down the outside part of his legs to his ankles.Appellee further testified that, excepting the three partial days he worked at the mill, he had not done any work from the date of injury to time of trial; that his condition had not improved, he could not sleep, suffered constantly from aches and pains in his back.Appellee gave further evidence that before he got hurt he could walk and stand erect, never had any pains or aches in his back before, and could lift heavy sacks of feed without hurt or pain.Appellee's wife, Mrs. Alta Self, testified that she had been married to appellee thirty-two years; that her husband had done farm work without ever complaining of his back; that he had not had a doctor in twelve or fifteen years, walked straight and erect; that he began work for Fant Milling Company in the fall of 1943 and continued uninterruptedly until he got hurt in January 1944; that on the day he got hurt, he was not complaining when he left home; that when she next saw him, he came home bent and stooped over, which caused him to go to bed, and on looking at his back she noticed "something like a knot kinder discolored like a bruise in the small of his back right below his belt line"; that he did not sleep much that night and has not rested good since his injury.Appellee's daughter, Mrs. J. D. Bivens, gave testimony corroborative of that of her father and mother; related the suffering of her father from pain and the knot she saw on his back—"pretty good size knot, about as big as the palm of my hand, right in the small of his back."James R. Hudson gave testimony for appellee that during the years 1933 to 1938he had worked with him at Cummer-Graham Company in Paris, Texas, unloading freight cars, handling lumber, and stacking crates; that he had seen him lift things weighing 100 pounds, handle lumber from cars, and other species of freight; that before the injury he had never heard him complain of aches and pains in his back, but since his injury had noticed that he did not walk straight.

Evidently the...