Garcia v. Aetna Cas. & Sur. Co.

• Court: Texas Civil Court of Appeals
• Writing for the Court: McKAY
• Citation: Garcia v. Aetna Cas. & Sur. Co., 542 S.W.2d 477 (Tex. Ct. App. 1976)
• Decision Date: 30 September 1976
• Docket Number: No. 933,933
• Parties: Angel GARCIA, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.

Page 477

542 S.W.2d 477

Angel GARCIA, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.

No. 933.

Court of Civil Appeals of Texas Tyler.

Sept. 30, 1976.

Gerald J. Goodwin, Brock & Williams, Houston, for appellant.

John P. Venzke, Fulbright & Jaworski, Houston, for appellee.

McKAY, Justice.

This is a workmen's compensation case in which appellant claimed injury and compensation benefits. After a jury finding that appellant had not sustained any total or partial incapacity as a result of an injury judgment was rendered that appellant take nothing. The jury also found that there was not another employee of the same class as appellant who had worked at least 210 days of the year immediately preceding in the same or similar employment in the same or a neighboring place. We affirm the judgment of the trial court.

Appellant alleged that while he was working within the course and scope of his employment he suffered accidental bodily injuries to his head, neck, back and right eye and that such injuries produced total disability. Appellant testified that he was a 'carpenter helper', and that he was working in the loft of the building and as he was putting up some plywood he raised from hammering and hit his head on a rafter and cut it. He said this injury resulted in temporary unconsciousness and he was taken to a doctor who sewed up the cut in his head. He further testified that he suffered from a headache and vomiting after being taken home, and that he was taken to the hospital where his head and neck continued to hurt while he was hospitalized as well as after his discharge. He further testified his eye was red and 'water a lot', and that he was in St. Joseph's Hospital ten or twelve days on two different admissions. He said that after his second release he tried to get his old job back but that they would not hire him because he was ill; that he did get a job with another company and while walking on a scaffold he got dizzy and fell and hurt his ribs and one leg; and that 'my head hurts. The neck and I get dizzy and I am afraid of heights.'

Appellant's first three points complain that there is no evidence, and that there is insufficient evidence to support the finding of the jury in answer to issue 1 that his injury was not a producing cause of any total incapacity, and that such answer is contrary to the greater weight and preponderance of the evidence as to be manifestly wrong and unjust. Points 4, 5 and 6 make the same complaints concerning the jury's answer to issue 2 that his injury was not a producing cause of any partial incapacity.

In passing on the no evidence point we may consider only the evidence and inferences therefrom which tend to support the verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). When the contention is that the evidence is insufficient to support a fact finding or that the finding is against the great weight and preponderance of the evidence, we must examine all the evidence and reverse and remand for a new trial if it concludes that the evidence is factually insufficient to support the finding of a vital fact or that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Dr. Litel, a neurosurgeon, testified his examination of appellant was neurologically normal, and that from his examination it was his opinion that appellant's complaint that he could not see well out of his right eye was subjective. Dr. Litel said he found no indication of swelling in appellant's eye, and he found nothing abnormal, and that from his standpoint the eye was normal, but that appellant was kept in the hospital for observation 'to make certain there was nothing of a very serious nature occurring.' His further examination showed that the x-ray of appellant's skull was normal, and the optic foramina (the two small holes through which the optic nerves go) were normal. EEG was mildly abnormal and brain scan tests showed evidence to support the possibility of a subdurval hematoma. A bilateral carotid...