Gallegos v. Truck Ins. Exchange

• Decision Date: 19 January 1977
• Docket Number: No. 15694,15694
• Court: Texas Court of Appeals
• Parties: Marcello GALLEGOS, Appellant, v. TRUCK INSURANCE EXCHANGE, Appellee.

Page 667

546 S.W.2d 667

Marcello GALLEGOS, Appellant, v. TRUCK INSURANCE EXCHANGE, Appellee.

No. 15694.

Court of Civil Appeals of Texas,

San Antonio.

Jan. 19, 1977.

Rehearing Denied Feb. 16, 1977.

Southers, Goldberg, Lyons & Huson, Inc., Karl Dorr, Frank R. Southers, San Antonio, for appellant.

Robert B. Summers, San Antonio, for appellee.

KLINGEMAN, Justice.

This is a workman's compensation case in which the question is whether there is sufficient evidence to warrant an award for general disability rather than only a specific injury to the workman's left eye. Trial was to a jury resulting essentially in jury findings that the injury to the left eye had extended to and affected the claimant's head; that the injury was a producing cause of some incapacity; and that such incapacity was total and permanent. Appellee, Truck Insurance Exchange, filed a motion for judgment non obstante veredicto and a motion to disregard the jury's answers to Special Issue No. 1 ¹ and Special Issue No. 2 (producing cause of incapacity), which motions were granted by the trial court. Appellee had stipulated that appellant had suffered total and permanent loss of sight in his left eye and judgment was entered accordingly for such loss.

'In connection with Issue No. 1, you are instructed that the left eye injury does not extend to and affect the head if the use or attempted use of the injured member merely results in pain in the head, without producing damage or harm to the physical structure of the head.'

There is evidence to support the jury findings that Gallegos is totally and permanently disabled. The question before us is whether there is any evidence to support the jury finding that Gallegos' injury to his left eye extended to and affected his head.

A judgment non obstante veredicto may be rendered only when there is no evidence upon which the nonmoving party may prevail. In deciding whether there is any evidence of probative value to support the finding in question, an appellate court must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S .W.2d 821 (Tex.1965); Rule 301, Tex.R.Civ.P.

Gallegos was injured during the course of his employment as a result of battery acid dripping into his left eye. Appellee does not question the severity of the injury to such eye and stipulated that Gallegos had suffered total and permanent loss of sight in his left eye. Since the date of the accident Gallegos has had frequent headaches and pain and has been unable to work or engage in much physical activity. Gallegos testified that he has severe headaches basically on the left side of his head; that there is nothing wrong with his right eye except sometimes it waters; that there is some pain on the right side but not very severe; that the pain is on the left side and feels like it is in the inside of the eye; that the pain that keeps him from working is pain in his left eye; that whenever he picks up something heavy the nerve inside his left eye bothers him; and that he has not been able to work because of the pain and essentially can do little physical activity. He further testified that he can only work for short periods of time; that the pain is on the left side on the inside and on the left half of the head; that he is unable to work because of the pain he feels inside his eye; and that he also feels some pain on the outside of the eye.

Several lay witnesses testified as to Gallegos' inability to work and stated he had dizzy spells when he went out in the sun.

Dr. Robert H. Poirier, an ophthalmologist, was the only medical witness to testify. He first saw Gallegos about two weeks after the accident and treated him about 25 times. He testified that Gallegos' left eye had a visual acuity of only 15/400ths with glasses; and that ...