Employers Mut. Casualty Co. v. Johnson
| Decision Date | 09 February 1953 |
| Docket Number | No. 14129.,14129. |
| Citation | 201 F.2d 153 |
| Parties | EMPLOYERS MUT. CASUALTY CO. v. JOHNSON. |
| Court | U.S. Court of Appeals — Fifth Circuit |
George C. Cochran, John N. Touchstone, Dallas, Tex., for appellant.
Donald V. Yarborough, Dallas, Tex., for appellee.
Before HOLMES, RUSSELL, and STRUM, Circuit Judges.
This appeal is from a judgment of the district court, entered upon the verdict of a jury for the plaintiff, Plenie Johnson, in an action against his employer's insurer under the Workmen's Compensation Law of Texas, Vernon's Ann.Civ.Stat. art. 8306 et seq. The complaint alleged the following facts:
On or about December 20, 1950, the appellee, while working as a day laborer for Bell Bottom Foundation Company in Grayson County, Texas, was struck on his left cheekbone by a hammer head, which slipped from the handle of a hammer being used by a fellow employee. His skull was fractured near the orbit of his left eye, and the skin in that region was bruised and lacerated to such an extent that an operation was necessary to repair the damage to the nerves, muscles, and ligaments of his face. Immediately following the accident, he was placed under the care of the company's physician, who sent him to the hospital where he received the treatment above mentioned. He was confined in the hospital for a period of ten days. Since the date of the accident, he has suffered from a defect in his vision, known to the medical profession as diplopia, or double-vision.
At the close of the evidence on the trial below, the court instructed the jury, if they should find that the plaintiff had sustained a total and permanent incapacity, the form of their verdict should be: "We, the jury, find for the plaintiff and find that he suffered total and permanent incapacity." In rendering their verdict, the jury found the plaintiff to have sustained a permanent and total "disability." The appellant argues that the verdict was defective, because the jury used the word disability when they were instructed to say incapacity, and failed to find when the disability commenced. The appellee, in his original complaint, used both words as descriptive of the extent of the injury, thereby giving them a synonymous meaning. In its amended answer, the appellant also used the words synonymously, and, on the trial, interrogated two of its witnesses relative to any disability found from an examination of the appellee. At the conclusion of the evidence, the court instructed the jury that any "incapacity or disability" must have been the result of an accidental injury. From the time of the filing of the complaint until the entry of judgment, appellant made no objection to the use of either word as a synonym of the other, and we conclude that the jury considered the words as meaning the same thing. We think that the verdict responded amply to the pleadings and to the material issues as defined in the court's charge. See U. S. Fidelity & Guaranty Co. v. Weir, Tex.Civ.App., 286 S.W. 565, 567; Southern Surety Co. v. Lacoste, Tex.Civ.App., 7 S.W. 2d 197, 199; Southern Underwriters v. Stubblefield, Tex.Civ.App., 130 S.W.2d 385, 388.
With regard to the argument of appellant that the verdict was defective because of the absence of a finding as to when the total disability commenced, the evidence shows that appellee was placed in the hospital immediately following the accident. The accident, as a fact, was admitted in appellant's answer. This leaves only the issue as to the extent of incapacity or disability. Such an argument as that presented by the appellant cannot be supported merely by testimony that the appellee was suffering from an ulcerated stomach. As this condition had existed in the appellee since 1936, and as there was no evidence that it interfered with the proper performance of his duties, no causal connection was established between the prior condition and his present disability. We think that the verdict, in view of the language of the pleadings and the court's charge to the jury, impliedly found that the total disability began on the date of the accident.
Appellant further contends that the verdict was erroneous, alleging that no proper foundation was laid upon which the appellee could...
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