City of Austin v. Powell
| Decision Date | 25 February 1959 |
| Docket Number | No. 10637,10637 |
| Citation | 321 S.W.2d 924 |
| Parties | CITY OF AUSTIN, Appellant, v. Leroy POWELL, Appellee. |
| Court | Texas Court of Appeals |
Doren R. Eskew, City Atty., Robert J. Potts, Jr., Asst. City Atty., Austin, for appellant.
Byrd & Davis, Austin, for appellee.
This appeal is from a judgment awarding total permanent disability to appellee for a calcium deposit in the tissues of his leg, alleged to have been the result of an injury in February, 1955, wherein appellant defended on the ground that the calcium deposit was the result of an injury in January, 1955, prior to the date upon which the Workmen's Compensation applied to appellant City of Austin.
The appeal is on seven points which are that the court erred in submitting Special Issue No. 1 inquiring whether appellee sustained an accidental injury to his right knee on or about the 14th of February, 1955, because there was no testimony to support the finding of the jury; that there was insufficient evidence as a matter of law to support a finding that the calcium deposit, the cause of appellee's disability, was the result of an accidental injury in February, 1955; that the court erred in not giving appellant's requested definition of 'accidental injury', and in the manner Special Issue No. 3 was submitted, because the issue does not inquire as to causal connection between a February injury and the resulting disability; in submitting Special Issue No. 4, because there was no credible evidence that any event in February, 1955 was a producing cause o the calcium deposit in appellee's leg, and in the manner of submission of Special Issue No. 4 in the use of the word 'injury', and in overruling appellant's First Special Exception to the effect that the notice of claim provision of the Austin City Charter is applicable to a claim for Workmen's Compensation.
Appellee says that the jury verdict was amply supported by the evidence and that appellant's requested definition of 'accidental injury' was properly refused, and that the issue inquiring if appellee sustained any total disability was properly submitted, as was Issue No. 4, and that the notice of claims provision in the City Charter has no application to this, a claim for Workmen's Compensation.
We believe that Special Issue No. 1, reading:
'Do you find from a preponderance of the evidence that Leroy Powell sustained an accidental injury to his right knee on or about the 14th day of February, 1955, while in the course of his employment with the defendant, City of Austin?
'The term 'accidental', as used in this charge, means an undesigned, unforeseen and unexpected occurrence or mishap.
'The term 'injury', as used in this charge, means damage or harm to the physical structure of the body and such disease or infections as naturally result therefrom, or the incitement, acceleration or aggravation of any disease or injury previously existing, by reason of such damage or harm to the physical structure of the body.
'Answer this Special Issue Yes or No.
'Answer: Yes.'
correctly submitted the question and that the finding of the jury has reasonable support in the evidence.
Appellee was injured on January 14, 1955 and received treatment and after some weeks returned to work and testified that he went back to work sometime in February, 1955, around the 11th or 14th, but could not give an exact date and that:
'Q. All right. What happened this second time you hurt this knee? A. Well, after I hurt this knee then----
'Q. How did you hurt it? A. Well, I mean I jumped into a ditch. I either bumped it against the banks of the well, which I estimate it was about a six foot ditch. I either struck it with an air hammer or some rocks extending outside the ditch because the air hammer was standing pretty close.
'Q. How did you jump into the ditch,--how did you turn your body? A. Well, I just caught hold to it and jumped into the ditch and swung down into it and my feet swung around and my feet couldn't touch bottom and that caused me to strike my knee--the inside of my right knee.
'Q. And you hit your right knee again? A. Yes, sir.
'Q. What did you do then? A. Well, about fifteen minutes after then, well, it commenced paining me and paralyzing me again and then I went and reported it to my foreman what had happened.
'Q. What did you tell your foreman? A. Well, I disremember whether I told him--I was hurting so bad, whether I said I hit it against the bank or what, but I did ask him would he send in a report where I could go back to the doctor.
'Q. You asked him if he would send in a report so you could go back to the doctor? A. Yes, sir.
'Q. Did you tell him that you had re-injured your knee? A. I disremember.
'Q. You don't remember whether you did or not? A. No, sir, I don't.
'Q. Is there any reason why you wouldn't have told him that you rehurt it? A. Yes, sir, I believe I would, because after I explained to him about sending me back to the doctor, why, he said that he couldn't report it, for me to report it myself; he cut me off and I didn't say any more to him. That was the answer he give me.
'Q. He told you to report it yourself? A. Yes, sir.
'Q. All right. What did you do then? A. Well, I don't know; I worked that evening; I believe I just fooled around that evening. It was either the next day or two days after then that I was sent back to the doctor.
'Q. Sent back to the doctor. Who was it that sent you back to the doctor? A. Mr. Jones.
'Q. Who is Mr. Jones now? A. Well, I disremember whether he was the superintendent or what. He was an official of the city.
'Q. He was with the city? A. Yes, sir.
* * *
'Q. All right. Now, after Mr. Jones sent you back to the doctor,--what doctor did he send you to? A. Back to Dr. Graham.
'Q. What did Dr. Graham do? A. Well, Dr. Graham said that there wasn't anything else that he could do, so he transferred me to Dr. Lowry.
'Q. To Dr. Lowry? A. Yes, sir.
'Q. How was your knee then? A. Well, my knee was all swolled up, paining me, all strutted out.
'Q. And he sent you to Dr. Lowry? A. Yes, sir.
'Q. What did Dr. Lowry do for you? A. Well, Dr. Lowry, he taken x-ray pictures of it, and what I would call give me some injection shots--I don't know what you call them--with needles and so forth, all like that, and then he referred me to go to the hospital.
'Q. To the hospital? A. Yes, sir.
'Q. What hospital? A. Brackenridge.
'Q. And he put you in Brackenridge Hospital? A. Yes, sir.
'Q. Do you remember about how long you were in the hospital, Leroy? A. No, sir, I don't. It ought to have been fifteen days--twelve or fifteen days, I would say.
'Q. Twelve or fifteen days? A. Yes, sir.
'Q. Did Dr. Lowry keep treating you after you got out of the hospital? A. Yes, sir, he did for a while.
'Q. When did Dr. Lowry treat you last? A. As near as I can remember it must have been in the month of May, I think was my last treatment.
'Q. May of '55? A. Yes, sir.
* * *
'Q. Well, now, in May of 1955 when Dr. Lowry stopped treating you, how was your knee then? A. Well, it wasn't getting any better. That is why he told me to go to Dr. Garcia. I wasn't able to do any work, and I wasn't getting any better.
'Q. Well, why didn't Dr. Lowry continue treating you? A. Well, I supposed he wanted me to pay him or wanted somebody to pay him, and I didn't have any money.
'Q. But he wouldn't give you any more treatment? A. No. sir.
'Q. And is that when you went to Dr. Garcia? A. Yes, sir.
'Q. Did Dr. Garcia treat you? A. Yes, sir.
'Q. What did he do for you? A. Well, Dr. Garcia done the same thing, give me some pills, and I think give me some injection shots.
'Q. Anything else? A. I think that is all I can remember.
'Q. Did he send you back to the hospital? A. Yes, sir, I think he did.
'Q. Brackenridge Hospital? A. If I can remember, I think he did.
'Q. You think he did? A. Yes, sir.
'A. Did he treat you after you got out of the hospital? A. Yes, he did.
'Q. About how long did he treat you? A. Dr. Garcia must have teated me up until the year 1956, but I disremember now what month he began treating me, '55 or '56.
'Q. Sometime in '56? A. Yes, sir, I disremember.
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On cross-examination appellee testified that the City paid for the hospital and doctor's bills for the first injury, and salary while he was off from work; that he went back to work in February and was reinjured on the 10th or 14th of February, and did not remember the day of the week.
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