Highway Ins. Underwriters v. Matthews
| Decision Date | 07 February 1952 |
| Docket Number | No. 12365,12365 |
| Citation | 246 S.W.2d 214 |
| Parties | HIGHWAY INS. UNDERWRITERS v. MATTHEWS |
| Court | Texas Court of Appeals |
Dyess & Dyess, of Houston, for appellant.
Dixie & Ryan and Thomas M. Ryan, all of Houston, for appellee.
This appeal in a workmen's compensation suit was brought by appellant, Highway Insurance Underwriters, to set aside an award of the Industrial Accident Board, awarding appellee, William Rad Matthews, compensation for total and permanent incapacity for injuries alleged to have been sustained by him in the course of his employment with J. L. (Roy) Newlin, who carried compensation insurance with appellant, Highway Insurance Underwriters.
A jury found, in answer to special issues submitted, that appellee had suffered total incapacity as a result of injuries received by him on June 26, 1949; that the duration of such total incapacity would last for a period of 58 weeks, and that he had suffered 70% partial, temporary incapacity from such injury from August 15, 1950. The jury found that the average weekly wage being earned by employees of the same class as appellee was $55 per week. The trial court overruled appellant's motion for judgment, and rendered judgment in favor of appellee on the jury's verdict.
The record reflects that appellee sustained a severe injury on June 26, 1949, by being struck by a piece of pipe which fell from a truck he was engaged in unloading. He was in a hospital for three weeks. After his discharge from the hospital, he secured employment as a plumber's helper, and later was employed by the Gray Tool Company, doing the same type of work he had done prior to his injury. The medical witnesses introduced by appellee testified that he was suffering from a herniated disk; that he passed blood in his urine for a substantial period of time after his injury; that he did not have normal movement in his spine; and, that he had a permanent disability.
Under its first 8 points of error, appellant contends, in substance, that the evidence adduced in the trial court was totally insufficient to warrant the court in submitting the case to the jury because of the insufficiency of essential evidence. This contention cannot, we think, be sustained.
The evidence adduced in the trial court was, we think, sufficient to sustain the findings of the jury.
The case of Texas Employers' Insurance Association v. Locke, Tex.Civ.App., 224 S.W.2d 755 (), held, under a similar state of facts, that the question of total incapacity of a compensation claimant may be proved by circumstantial evidence, and that the circumstances may be derived by those in a competent position to give them.
In the case of Traders & General Insurance Co. v. Heath, 197 S.W.2d 130, this Court, speaking through Justice Cody, held that the fact that a claimant worked and earned money after sustaining an injury is not conclusive on the issue of his capacity to work, but is evidentiary only, to be considered with the other evidence, and that the finding of the jury that claimant was permanently injured could not be set aside merely because of evidence that claimant had worked during the period between the injury and the trial. (Citing authorities.)
Under its 10th point of alleged error, appellant complains of the action of the trial court in admitting the testimony of the witness, Ira Allen Jester, who testified that in 1948 and 1949 men in Houston who drove trucks and worked as much as 300 days during the year drew an average pay of between $54 and $62 per week.
This contention cannot, we think, be sustained.
In the case of Texas Employers' Insurance Association v. Locke, supra, it was held that the statutory provision of the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., must be liberally construed to effectuate its known purpose, and that where claimant's average wage rates could not be fixed by average wage rates of other employees in similar employment, slight testimony was sufficient to raise a jury issue, and, when found in the affirmative, would support the verdict.
Under its 12th point of alleged error, appellant contends that the trial court erred in permitting appellee's wife to testify that he had...
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