General Acc. Fire & Life Assur. Corp. v. Coffman

• Court: Texas Civil Court of Appeals
• Writing for the Court: TIREY
• Citation: General Acc. Fire & Life Assur. Corp. v. Coffman, 326 S.W.2d 287 (Tex. Ct. App. 1959)
• Decision Date: 18 June 1959
• Docket Number: No. 3637,3637
• Petition History: writ ref'd n.r.e.
• Parties: GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, Ltd., Appellant, v. A. D. COFFMAN, Appellee.

Page 287

326 S.W.2d 287

GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, Ltd., Appellant, v. A. D. COFFMAN, Appellee.

No. 3637.

Court of Civil Appeals of Texas, Waco.

June 18, 1959.

Rehearing Denied July 16, 1959.

Bryan & Patton, Houston, for appellant.

Combs & Mitchell, Houston, for appellee.

TIREY, Justice.

This is a compensation case. Appellee, plaintiff in the court below, alleged that on July 25, 1957, while working in the scope of his employment for The Austin Company, he received an injury to his back while carrying a barrel of water. Appellee's claim was submitted to the Industrial Accident Board, and on December 24, 1957, that Board made an award. Plaintiff was dissatisfied with the award and appealed to the District Court of Fort Bend County. Trial was had in that Court and the jury returned a verdict favorable to the plaintiff, and among other things found that he was totally and permanently disabled. The judgment recites that plaintiff is entitled to judgment against defendant for Workmen's Compensation benefits at the rate of $25 for a period of 401 weeks, commencing from the date of the injury, July 25, 1957; that compensation payments from July 25, 1957, to May 17, 1958, have accrued, and fixed the amount past due at $1,036.25, with interest; that plaintiff is entitled to compensation for the remaining period of 360 weeks and 1 day at the rate of $25 per week, and found that such payment shall be made in a lump sum, allowing a discount of 4% per annum, and fixed the total amount due appellee at $8,914.87, and set aside the award of the Industrial Accident Board, and decreed accordingly. Appellant seasonably filed its motion for new trial and it being overruled perfected its appeal to the Houston Court, and the cause is here on transfer.

The judgment is assailed on six points, they are substantially to the effect that the Court erred: 1. In excluding the testimony of Dr. DeYoung as to the beneficial effect an operation would have on plaintiff; 2. In instructions given to the jury at a time the jury returned conflicting answers to their verdict; 3. In excluding from the jury evidence of the earnings of plaintiff's wife and evidence of the amount of money plaintiff obtained from a previous compensation settlement where the question of hardship in connection with lump sum payment of the award was presented as a fact issue to the jury; 4. In holding that the defendant was not entitled to a new trial because of jury misconduct where it was shown that one of the jurors intentionally failed to disclose a previous back injury and where it was shown that the juror was influenced by his own condition; 5. In failing to declare a mistrial because of the improper arguments made by plaintiff's counsel, and in further failing to grant a new trial because the cumulative effect of such improper arguments probably caused the rendition of an improper verdict; 6. That the accumulation of errors make it probable that injury resulted to the defendant, even though no single error of itself is a basis for reversal.

Returning to Point One, testimony was tendered by plaintiff's witness, Dr. DeYoung, to the effect that he first saw plaintiff September 26, 1957; that plaintiff was complaining of his back, and that he examined him thoroughly for such ailment; that he sent the patient to a radiologist, and that x-rays revealed moderate hypertrophic changes in the back, and no other abnormalities; that Dr. DeYoung saw plaintiff again on Oct. 28, 1957, and again on December 20, 1957, and at that time Dr. DeYoung was of the view that plaintiff had only a back sprain; that on February 22, 1958, plaintiff was again examined by Dr. DeYoung, and sent to Dr. Owsley for a myelogram. Thereafter, Dr. DeYoung concluded for the first time that plaintiff had a herniated lumbar disc. At that time plaintiff's case had been heard by the Industrial Accident Board, and it had entered its final award, and plaintiff had perfected appeal to the District Court of Fort Bend County, and trial was commenced in that court on May 5, 1958. Dr. DeYoung further testified to the effect that in his opinion plaintiff had a ruptured intervertrebal disc, and that it was produced by the injury of July 25; that the condition of the herniated disc as it exists at this time was permanent and that plaintiff was totally disabled. On cross-examination the defendant was denied the right to develop evidence to the effect that the plaintiff would benefit by surgery. In the bill of exceptions it was shown that Dr. DeYoung, on April 17, 1958, for the first time requested authority to perform corrective surgery; that Dr. DeYoung proposed to carry out a laminectomy and spinal fusion; that he thought such an operation would probably result in six months disability and two months partial disability, with a permanent disability of about 20%; that such disability, after the operation, should not prevent the plaintiff from performing hard labor; that the operation was not dangerous.

It is appellant's contention here that the Court committed reversible error in excluding evidence tendered by it of the beneficial effect of the operation because it prevented the defendant from proving that the condition of the plaintiff was not incurable, and if given the opportunity he could be restored to sound physical condition. Appellant relies on an opinion by our Fifth Circuit Court in Naional Surety Corporation v. Bellah, 245 F.2d 936. Appellant also contends that the question here presented has never been decided directly by an appellate court of Texas. Appellee contends that the question has been foreclosed by the Texas Courts against appellant's contention, and cites Texas Emp. Ins. Ass'n v. Kubiak, Tex.Civ.App., 276 S.W.2d 909, (n.r.e.); American General Ins. Co. v. Quinn, Tex.Civ.App., 277 S.W.2d 223, (n.r.e.). We find that in the Kubiak and Quinn cases each involved injuries which resulted in a herniated disc; that the jury found total and permanent disability. The insurance carrier in each case did not admit but denied liability and did not tender curative surgery until after the appeal in each case was perfected from the Industrial Accident Board to the District Court. As we understand the record in the Kubiak and Quinn cases, the Texarkana Court expressly found in each cause that the insurance carrier did not comply with Section 12b and Sec. 12e of Article 8306 of Vernon's Ann.Civ.St. That Court expressly held that inasmuch as the carrier did not comply with Sec. 12b and Sec. 12e and denied liability on each claim, that the carrier was not entitled to plead nor prove the possible curative benefits of a surgical operation; the appellee contends that inasmuch as our Supreme Court refused application for writ of error in each case on the ground that there was no reversible error, that such order of the Supreme Court has definitely fixed the Rule in Texas, and that this Court should follow it, and not follow our Circuit Court in the Bellah case. Appellee also cites and relies on an opinion by our Fifth Circuit Court in Wilke v. Security National Casualty Co., 262 F.2d 419. We have carefully considered the opinion in the Wilke case. The writer of the opinion in such case expressly holds that the Bellah case is not in point and not controlling in the Wilke case, however, we cannot say that the Wilke case is in accord with the holding in the Kubiak and Quinn cases. As we understand the Bellah case, our Fifth Circuit Court had exactly the same procedural question before it as in the Kubiak and Quinn cases as is presented by appellant's point 1 here as to the exclusion of the evidence showing the benefit of curative surgery. In the Bellah case, the Court, among other things, said: 'But when it comes to the procedural point of the exclusion of medical testimony, we think the trial court, applying too literally two Texas cases, each of which cited two of ours, fell, or was pulled, into error.' . In view of the holding in the Bellah case we have had the Clerk of the Supreme Court mail to us a copy of the application for writ of error in the Kubiak and Quinn cases, and we have carefully reviewed them and find that the exact question in the Bellah case was presented in each of these applications for writ of error. In each application the point was so clearly pointed up to our Supreme Court that we are of the view that it would have granted the writ if it had not been of the view that the action of the Court of Civil Appeals thereon was a correct construction and application of our compensation statute. This Court, speaking through Justice Hale in American Surety Co. of New York v. Mays, Tex.Civ.App., 157 S.W.2d 444, 446, (Writ Ref. for want of Merit), made this pronouncement: 'It is now settled that each step in the progress of the maturity of a claim under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., from the time of the injury to its final adjudication is a mandatory requirement necessary to the exercise of jurisdiction by the first and succeeding statutory agencies. * * * Section 12e of the same Article provides for a surgical operation in all claims for general injury when such operation will effect a cure of the employee or will materially and beneficially improve his condition, subject to the terms therein set forth, and 'the results of such operation, the question as to whether the injured employe shall be required to submit thereto and the benefits and liabilities arising therefrom shall attach, be treated, handled and determined by the board inthe same way as is provided in the case of hernia in this law.'

It is true that the appellant in the case at bar did not know that surgery would be of benefit to the plaintiff until after the Board had acted upon plaintiff's claim, and after plaintiff had perfected his appeal from such award to the District Court, and had, in effect, ousted the Industrial Accident Board of all jurisdiction relating...