Bituminous Fire & Marine Ins. Co. v. Jones, 154

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Citation: 398 S.W.2d 577
• Decision Date: 06 January 1966
• Docket Number: No. 154,154
• Parties: BITUMINOUS FIRE & MARINE INSURANCE COMPANY, Appellant, v. Frank JONES, Appellee.

Page 577

398 S.W.2d 577

BITUMINOUS FIRE & MARINE INSURANCE COMPANY, Appellant, v. Frank JONES, Appellee.

No. 154.

Court of Civil Appeals of Texas, Tyler.

Jan. 6, 1966.

Rehearing Denied Feb. 3, 1966.

Vernon R. Berry, Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellant.

R. W. Fairchild, Fairchild & Badders, Vernis Fulmer, Nacogdoches, for appellee.

DUNAGAN, Chief Justice.

This is a workmen's compensation case, tried before a jury. The jury in answer to Special Issues submitted by the trial court found general incapacity both temporary total and permanent partial on which findings judgment was entered by the trial court. The jury also found that the injury to the left hand did not extend to or affect the left shoulder, but found that the injury to the left hand extended to and affected the plaintiff's general health. Defendant's amended motion for new trial was overruled from which this appeal results. The appellant has brought forward 27 Points in which it complains the trial court committed error. Appellant by its first 12 Points contends that the trial court erred in rendering judgment based on the jury's answers to Special Issues Nos. 4, 7, 11 and 27: (1) because there is no evidence; (2) because the evidence is insufficient; (3) and because the jury's findings on said issues are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

The jury found in response to Special Issue No. 4 that plaintiff, Frank Jones, sustained total incapacity as a natural result of the injury; to Special Issue No. 7 that Frank Jones sustained or will sustain partial incapacity as a natural result of the injury; to Special Issue No. 11 that the injury to Frank Jones's left hand extended to and affected his general health thereby causing disability; and to Special Issue No. 27 that the average weekly wage earning capacity of plaintiff Jones during the period of partial loss of use of his left hand was $25.00 per week.

Frank Jones, the plaintiff in the court below, and appellee in this court, testified that on the occasion of his injury, he was standing on a table using with both hands an iron bar to pry loose a log which had hung in the splitter. The bar slipped out and he slipped and fell, hitting the 'rack' hard with his left shoulder, left knee, left hand and arm. At first it sort of deadened his arm and hand. Then the left hand hurt. He worked on for about an hour and a half, and by that time his whole left hand was swollen and his left arm was hurting all up into his shoulder and neck. Ever since the injury there has been a bruise or discoloration on his left shoulder. He had no trouble before the injury with his left shoulder, the left side of his neck or his left arm and hand.

He was paid compensation benefits for five or six weeks. Then he drew unemployment compensation for thirteen weeks. During the five or six weeks he drew workmen's compensation benefits and the thirteen weeks he drew unemployment benefits, he did no work.

He further testified that he had no way of supporting himself and his family except by working. That he has worked because he has had to work in order to eat. Working causes increased pain in his shoulder and neck. After the eighteen or nineteen weeks during which he drew workmen's compensation benefits and unemployment compensation, he did perform some work.

He worked two or three days picking beans in which he used his right hand. He helped pull the head off a motor but he just used his right hand, not his left. He worked for a week in helping put a motor back into an automobile in which he used the left forefinger and thumb on his left hand when necessary. He did some welding also, but just used his right hand. There was other part-time work enumerated, but in all he only used his right hand.

He also testified that his left arm, left hand, left shoulder and his neck have never been free of pain since he fell. The pain in his arm, shoulder and neck is a sharp, nagging pain which stays there all of the time. The pain in his arm, hand, shoulder and neck got worse. There was nothing he could do to make a living that would not cause increased pain in his shoulder and neck. His left hand has been swollen ever since he got hurt and was swollen at the time of the trial. When he uses his left hand a lot, it swells even more. He can't bend three of the fingers on the left hand; they are numb. He can work his thumb and forefinger on his left hand, and he tries to use them as much as he can, but he can't grip anything with those two fingers and if he presses with them, it causes pain to go up his arm and into his shoulder and neck.

He testified further that before he sustained the injury, he weighed 138 pounds. Today he weighs only 120 pounds. He is not as strong as he was, and he can't get around like he used to; he is slower. His appetite is not too good; because of the pain, he does not sleep well at night.

The plaintiff Jones was corroborated by other witnesses in regard to him using his right hand when he was working and did not use his left hand except perhaps to sometime steady an object or hold it in place.

Witness Alton Hicks testified that he was working for Norris Fence Company when Jones was injured. Before his injury, Jones appeared to work all right as a normal person. He was about four feet from Jones when he was hurt. Jones was trying to break a jam log loose from a saw with a bar. Jones was upon the table. The bar slipped and Jones fell against the machine. Jones hurt his hand, and the way he fell he had to strike the bar with his shoulder. That afternoon Jones complained of his hand, arm and shoulder. He could see Jones's hand was swollen. Since his injury, he has asked Jones every time he has seen him about his condition, and Jones has shown him his hand, which on each occasion was still swollen, and Jones said his arm hurt him all the way to the shoulder. He has seen a bruised place on Jones's shoulder. He does not remember whether it was the right or left shoulder.

Witness J. C. Matthews testified that Jones is not as heavy as he was a year and a half ago. He is not as active as he was then, either; he is slower. Within the last year and a half, he has called on Jones to do some mechanic work in a valve job on a Chevrolet. Jones used just one hand. He kept Jones on a part of a day and he paid him a couple of dollars just to give him something for the time he was there. He testified that Jones's work was not satisfactory.

Appellee's (Frank Jones) wife testified that Jones worked hard before he got hurt and she never knew him to complain before he got hurt of his left hand, left arm or neck, or to have sleepless nights or to take medicine.

The night of the day Jones got hurt while working for Norris Fence Company, she saw him when he got home. She saw a little spot of blood on the left shoulder of his shirt and when he took the shirt off, she saw a bruised place on his left shoulder and it wasn't there before that day. Jones's left hand was swollen and it has been ever since. She said Jones complained of pain in the left side of his neck and in his shoulder, left arm and left hand.

She further testified that Jones takes medicine every day all through the day. That she uses warm water and Epsom salt, alcohol rub and deep heat on Jones's neck, shoulder, arm and hand. She does this every day and sometimes more than once a day. Jones's left hand seems colder than his right hand. After Jones got hurt, he started losing weight.

Dr. Mahon testified that an injury can be serious and permanent without a fracture. Pain in any part of the body can, if long endured, affect a person's general health and strength, interfere with his sleep and rest, and impair his appetite.

It has been held in this state that the factual testimony of the claimant alone, or other lay witnesses, will support a jury finding of total or partial incapacity, even though such lay testimony is contradicted by the testimony of medical experts. The Travelers Insurance Company v. Wade, 373 S.W.2d 881, (Tex.Civ.App.) 1963, writ refused, n. r. e.

(1, 2) It was the province of the jury, as the trier of the facts, to pass upon the credibility of witnesses and the weight to be given their testimony. The jury had a right, and apparently exercised it, to reject the testimony of appellant and give credence to that given by the witnesses for appellee. Martin v. J. S. Hunt Lumber Co., 180 S.W.2d 956, (Tex.Civ.App.) 1944 n. w. h.; Schwab v. Stewart, 387 S.W.2d 939, (Tex.Civ.App.) 1965, writ refused, n. r. e.; 390 S.W.2d 752.

(3, 4) We think the evidence in this case is sufficient to support the jury's findings to Special Issues 4, 7, 11 and 27 and accordingly appellant's Points 1-12 are overruled.

(5) In considering appellant's contention that the jury's answers to Special Issues 4, 7, 11 and 27 were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust requires us to weigh and consider all the evidence in the case and set aside the verdict and remand the cause for a new trial if we consider the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re: King's Estate, 150 Tex. 662, 244 S.W.2d 660.

We have studied the statement of facts carefully and we cannot say in applying the rules just announced that the jury's answers to these issues were so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust.

Appellant alleges in Points 13 and 14: (1) the trial court erred in rendering judgment based upon the jury's answers to Special Issue No. 4 which found that the plaintiff sustained total incapacity and Special Issue No. 7 which found that the plaintiff sustained partial incapacity to his body generally because there is a fatal conflict between the jury's answers to Special Issues Nos. 4 and 7 and the...