Commercial Standard Ins. Co. v. McGee

• Citation: 40 S.W.2d 1105
• Decision Date: 18 July 1931
• Docket Number: No. 11023.,11023.
• Parties: COMMERCIAL STANDARD INS. CO. v. McGEE et al.
• Court: Court of Appeals of Texas

40 S.W.2d 1105

COMMERCIAL STANDARD INS. CO. v. McGEE et al.

No. 11023.

Court of Civil Appeals of Texas. Dallas.

July 18, 1931.

Appeal from District Court, Dallas County; W. M. Taylor, Judge.

Suit by the Commercial Standard Insurance Company against F. F. McGee and others, to set aside an award of the Industrial Accident Board, from which defendants filed a cross-action. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

W. P. Bondies, D. A. Frank, and Hobert Price, all of Dallas, for appellant.

White & Yarborough, of Dallas, for appellees.

VAUGHAN, J.

This suit arose under the Workmen's Compensation Law. On October 14, 1929, an award was made by the Industrial Accident Board on the petition of F. F. McGee, appellee, against Commercial Standard Insurance Company, appellant, as compensation for injuries alleged to have been sustained by appellee in the course of his employment as an employee of Wyatt Metal & Boiler Works, of Dallas county, Tex. On November 2, 1929, appellant filed its original petition in the court below, appealing from said award. Appellee, his attorneys, Messrs. John White and H. J. Yarborough, were joined as defendants, they having been mentioned in and to participate in the award made by said board. Said parties, as defendants in the court below, filed an answer and cross-action presenting the usual allegations as to formal matters in a compensation suit, and sought recovery in behalf of appellee McGee for compensation at the rate of $12.46 per week for a period of 401 weeks, alleging that said McGee had been totally and permanently disabled by virtue of the injuries claimed to have been sustained by him on or about June 13, 1929, while working in Dallas county, Tex., for Wyatt Metal & Boiler Works while he was attempting to lift a heavy piece of steel, whereby he accidentally strained and otherwise injured certain tendons, ligaments, muscles, etc., in his neck, shoulders, and arms. There were the usual allegations of employment of attorney with the agreement to pay the one-third of the recovery, and of the hardships that would result if a lump sum settlement therefor was denied.

Appellant's answer consisted of a general demurrer, special exceptions, a general denial, and the following special denial: "* * * That if the defendant was injured at all, which is not admitted but is denied, that his injuries were not general, but were specific and his injury consisted in nothing except a sprain or strain to the arm, if there was any such injury, and there was no injury sustained by the defendant that could in any way cause total and permanent injury. * * *"

In response to the special issue submitted, the jury found that appellee sustained accidental injuries on the occasion alleged; that he was totally incapacitated by result of such injuries; that same was not permanent and would continue for 200 weeks; that no partial incapacity would result; that hardship would result if compensation was not paid in a lump sum.

The trial court upon this verdict rendered judgment in favor of appellee McGee against appellant for $969.50, weekly compensation that matured for a period of 75 weeks from date of injury until date of trial, and for the further sum of $12.46 per week for a period of 125 weeks as compensation subsequent to November 27, 1930. By due and comprehensive proceedings, said cause was presented to this court for review.

Appellant by propositions Nos. 1, 2, 3, and 5 contended that the findings of the jury above set out were clearly contrary to the overwhelming preponderance of the evidence, and therefore the verdict should be set aside. A careful examination of all the evidence, with due effect given thereto, apparently sustains said propositions. However, we are required to determine the sufficiency of the evidence to sustain said findings from the evidence before the jury supporting same, and, in considering the testimony of the witnesses, we are denied passing upon their credibility, as that is a prerogative that rests exclusively with the jury, appellate courts being confined to consider alone the probative effect of the evidence; this perhaps includes the right to determine the facts established by the evidence. Therefore, inasmuch as there was introduced evidence which, if believed by the jury to be true, was sufficient, upon which the findings made could be based, we are required to overrule said propositions. This holding is by no means to indicate that this court, as an original proposition presented for its determination, would have reached the same conclusion, from all of the evidence introduced, as that reached by the jury. We are only applying and abiding by the rules of law that govern appellate courts in passing upon and determining questions of this character.

Appellant, by its fourth proposition, contends that the trial court erred in excluding "from the evidence a written statement made by Howard Rollison on October 7, 1929, in which said witness stated that appellee McGee never sustained any accidental injuries while working for Wyatt Metal & Boiler Works, as claimed by him, on the ground, that said witness denied making said statement after sixteen admitted genuine signatures of said witness had been introduced in evidence, which the jury had a right to compare with the signature on said statement, claimed to have been made by said Rollison." Witness Rollison admitted as genuine his signatures indorsing seven different checks as being genuine, and nine signatures written by him on a piece of paper in the presence of the jury, which were admitted in evidence. Said witness testified that appellee McGee sustained injuries as alleged by him while working for Wyatt Metal & Boiler Works on June 13, 1929. Said statement was offered in evidence as bearing upon the credibility of said witness, and was excluded solely upon the ground that Rollison testified that he did not make it. We think this was error. Rollison was the only witness corroborating appellee McGee; that he (McGee) had sustained the injuries alleged by him at the time and on the occasion involved, and in the manner alleged; hence said statement was offered in evidence for the purpose of discrediting Rollison on a very material issue. Therefore, the sixteen admitted signatures and the manner in which Rollison testified, both as to corroborating McGee and in reference to whether or not he made the statement excluded, presented an issue for the jury to pass upon, viz., whether or not the signature on the excluded statement was that of said Rollison. The prerogative of the jury to reach a conclusion upon this question by an examination and comparison of the admitted signatures of said Rollison, with the disputed signature to the excluded statement, was to be exercised, although the jury was not aided by expert testimony based upon said signatures; this because expert testimony could only have furnished additional aid to the jury in determining the issue as to whether or not the disputed signature was that of said Rollison. Kennedy v. Upshaw, 64 Tex. 411; Barnes v. Barnes (Tex. Civ. App.) 261 S. W. 485; Kveton v. Keding et al. (Tex. Civ. App.) 286 S. W. 673; Latham v. Jordan (Tex. Com. App.) 17 S.W.(2d) 805. Said proposition is therefore sustained.

Appellant complains of the action of the trial court in sustaining objections to and excluding the following testimony of its witness, Dr. J. H. Marshall: "Now if the brachia plexus had been injured or paralyzed, and the nerve suspended on one side, he would have a flaccid paralysis. After you have a flaccid paralysis there would be no pain and no sensation, and no power, couldn't move it, couldn't feel it, and of course if you had the definite thing you would get some sluffing of the tissues, because when the nerve supply is gone the tissue perishes. On the other hand, coming right back, he would have this sub-static contraction of the arm with definite pain, all in there, so that would be comparable to connecting up your wires again. It would be impossible, we know that. You don't get a condition of that kind once and then get another condition in another case, because it shows that the nerves are intact and that he would not have a flaccid paralysis one minute and a spasm or contraction or pain the next minute," on the ground that same was argumentative. This ruling we think was material error. Missouri, K. & T. Railway Co. v. Criswell, 34 Tex. Civ. App. 278, 78 S. W. 388; St. Louis Southwestern Railway Co. v. Taylor, 58 Tex. Civ. App. 139, 123 S. W. 714; St. Louis, S. F. & T. Railway Co. v. Overturf (Tex. Civ. App.) 163 S. W. 639. However, this error would not of itself justify a reversal of the judgment; this because the identical evidence contained in the bill of exception appears in the statement of facts, from which we must assume that, as a matter of fact, said testimony was not excluded from, but remained before, the jury. The ruling sustaining appellee's objection was not followed by a motion to withdraw said evidence from the jury.

Appellant's propositions Nos. 10, 11, 12, and 13 present as error the refusal of the trial court to submit, respectively, in connection with the following special issues given to the jury, an appropriate charge on the burden of proof, viz.:

"No. 1: Do you find from a preponderance of the evidence that the defendant, F. F. McGee, sustained accidental injuries on June 13, 1929?"

"No. 2: Do you find from a preponderance of the evidence that the injuries, if any, sustained by the defendant, F. F. McGee, on June 13, 1929, were sustained by him while an employee of Wyatt Metal & Boiler Works?

"No. 3: Do you find from a preponderance of the evidence that the defendant, F. F. McGee, sustained such injuries, if any, in the course of his employment, as an employee of Wyatt Metal & Boiler Works?

"No. 4. Do you find from a preponderance of the evidence that the defendant, F. F. McGee, sustained total...