Dillard v. Traders & General Ins. Co.
| Decision Date | 01 October 1954 |
| Docket Number | No. 15542,15542 |
| Citation | 271 S.W.2d 825 |
| Parties | Nina B. DILLARD et vir., Appellants, v. TRADERS & GENERAL INSURANCE COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Peery, Wilson & Spell, Kearby Peery, Wichita Falls, for appellants.
Jones, Parish & Fillmore, Clyde Fillmore, Wichita Falls, for appellee.
On September 10, 1954, we entered judgment affirming the judgment of the trial court. After further study of the case on motion for rehearing, we have come to the conclusion that we were in error in so doing. The former opinion is hereby withdrawn and the following substituted therefor.
Nina B. Dillard, joined by her husband, brought suit against the Traders & General Insurance Company under the Texas Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., for compensation benefits because of the 'loss of use' of her arm, and in the alternative for 'loss of use' of her hand.
It appears that she received injuries of a 'smashing' character to her right hand and to the ring and little fingers of her right hand. By her pleadings she does not merely seek to obtain specific compensation benefits for 'loss of use' of the ring and little fingers of her hand and the adjacent metacarpals, but under allegation that the injuries she sustained to her hand resulted in the permanent total 'loss of use' of the hand, along with further allegation that such injuries extended to and affected her arm in such manner that she has suffered a permanent total 'loss of use' of the arm, she prays for 200 weeks of compensation for the more extensive loss claimed, and in the alternative for 150 weeks of compensation in the event she is unable to prevail in her contention that the injuries extended to and affected her arm.
In the submission of special issues to the jury there was no question posed as to whether the plaintiff sustained any injury to her ring and little fingers and adjacent metacarpal bones, and neither was there any question submitted as to whether she sustained any loss, or loss of use, of the fingers and metacarpal bones.
The issues and the material findings of the jury relating to plaintiff's injuries and disabilities were as here recited according to the number given each of such issues in the charge given the jury:
2. Plaintiff sustained an injury to her hand, other than and in addition to the injury, if any, to her ring and little fingers and matacarpal bones adjacent and attached thereto.
5. Plaintiff sustained some total loss of use of her right hand following the experiencing of the injury to her hand.
6. The injury plaintiff sustained to her hand was a producing cause of the total loss of use of such hand which followed such injury.
8. The total loss of use of such hand, which followed such injury, has been and will be permanent in character.
15. The injury to the plaintiff's hand extended to and affected the plaintiff's right arm at or above the elbow.
16. The injury to plaintiff's hand naturally resulted in the total loss of the use of her right arm for a period. 18. The total loss of use of such arm, which naturally so resulted, has been and will be permanent in character.
26. The loss of use of plaintiff's hand resulted solely from the loss of use of plaintiff's little finger and ring finger and metacarpal bones.
29. The loss of use of plaintiff's arm resulted solely from the loss of use of plaintiff's little finger and ring finger and metacarpal bones.
It should be noted that the findings quoted from the special issues submitted were defendant's issues in No. 26 and No. 29, but the others were the plaintiff's issues It should also be noted that the charge contained no definition of the term 'producing cause'.
Special issues 26 and 29 were not objected jected to by the plaintiff, or, if they were, such objections were not brought forward as part of the record. Neither did the appellant move the court to disregard the jury's answers to these issues as unsupported by evidence, under the provisions of Texas Rules of Civil Procedure, rule 301.
Both the plaintiff and the defendant insurance company filed motions for judgment based upon the verdict of the jury. The court entered judgment based upon the motion filed by the defendant. Though there were no findings which supported its entry, the judgment entered obviously considered that it was established that the plaintiff had sustained a total loss or loss of use of the ring finger and little finger and adjacent metacarpals, since it awarded her fifty-six weeks of compensation. This number of weeks of compensation would fit the provisions of the Workmen's Compensation Act for such loss or loss of use. By the judgment the plaintiff was denied any recovery based upon either arm or hand loss or disability. In effect, judgment for the defendant was entered in so far as concerned the theory of recovery upon which plaintiff tried her case.
From this judgment, so entered, the plaintiff perfected the appeal, and as appellant seeks to have the judgment reformed and as reformed rendered in her behalf for the loss of use of her arm, or alternatively for the loss of use of her hand. From the prayer of the appellant, in her brief, it is apparent that she believes that she is entitled to have the judgment reversed and rendered in her behalf. Upon motion for rehearing, however, she seeks a remand of the cause for another trial, pointing out the conflict in the jury findings and that fundamental error requiring such action on our part is apparent from the record.
The submission of special issues on the plaintiff's case in answer to which she hoped to establish that the disability existent in her hand was produced by the injuries she sustained to it directly (other than the injuries to her ring and little fingers and metacarpals) does not necessarily exclude the possibility that the same jury might find in response to the defendant Insurance Company's issues that the disability in the hand resulted from the loss of use of the ring and little fingers and metacarpals. Rather might the jury understand and conclude that the disability so existent had resulted from the direct injury and from the loss of use of the ring and little fingers and metacarpals. Of course, the jury should be aware that the disability in or loss of use of the hand could not result solely from the loss of use of the plaintiff's little finger and ring finger and metacarpals,-and at the same time be produced by the injuries she sustained directly to her hand. The dame situation would obtain in the converse of this situation, or had the jury found that the loss of use of the hand was produced by the injury and disability to the fingers and metacarpals and also found that such loss of use of the hand was produced solely by the injury...
To continue reading
Request your trial
-
Missouri Pac. R. Co. v. Ramirez
...conflict therein. See: Graham v. Dallas Ry. & Terminal co., Tex.Civ.App., 165 S.W.2d 1002, 1006, W/E Ref.; Dillard v. Traders & General Ins. Co., Tex.Civ.App., 271 S.W.2d 825, 829; Hancock v. Sammons, Tex.Civ.App., 267 S.W.2d 252, W/E Ref. NRE; Fort Worth & D. Ry. Co. v. Britton, Tex.Civ.Ap......
-
Snider v. Texas & Pac. Ry. Co.
...being in irreconcilable conflict, the trial court should have set the verdict aside and granted a new trial. Dillard v. Traders & General Ins. Co., Tex.Civ.App., 271 S.W.2d 825, no wr. hist.; Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453; City of Panhandle v. Byrd, 130 Tex. 96, 106 S.W.2d......
-
Smith v. Bullock
...further necessitating a reversal. See Boultinghouse v. Thompson, Tex.Civ.App., 291 s.W. 573, W/E dis.; Dillard v. Traders & General Ins. Co., Tex.Civ.App., 271 S.W.2d 825. Plaintiff's 2nd contention complains of the jury's finding of 'None' to Issue 49, which inquired of the amount necessar......
-
Texas Emp. Ins. Ass'n v. Childress
...by the loss of the use of the fingers. Additionally, we adopt the reasoning of the Fort Worth Court in Dillard v. Traders & General Insurance Co., Tex.Civ.App., 271 S.W.2d 825 at page 827, 3rd paragraph, as particularly pertinent The appellant heavily rests his contention, to the effect tha......