Indemnity Ins. Co. of North America v. McManus
| Citation | 88 F.2d 924 |
| Decision Date | 18 March 1937 |
| Docket Number | No. 8121.,8121. |
| Parties | INDEMNITY INS. CO. OF NORTH AMERICA v. McMANUS. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Austin Barnes, of Beaumont, Tex., for appellant.
Otis Rogers, of Fort Worth, Tex., for appellee.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
This is an appeal from a judgment awarding total and permanent disability benefits under the Workmen's Compensation Law of Texas (Vernon's Ann.Civ. St.Tex. arts. 8306-8309). The material issues presented by the petition and answer were submitted to the jury, who returned a verdict for appellee and for the payment of compensation to him in a lump sum. The verdict was received by the court, and judgment was entered thereon in accordance with its tenor and effect.
For the purposes of this appeal, the verdict of the jury establishes as true the material facts in evidence which are favorable to the appellee, and which correspond to the allegations in the petition. For a clear understanding of the case it is necessary to state only the ultimate facts so established by the verdict. For many years appellee had been an employee of the Gulf Refining Company, which carried a policy of workmen's compensation insurance with appellant.
On January 15, 1932, in the course of his employment, while attempting to close a gate, a strong gust of wind blew the gate upon appellee, pinning him underneath it, striking his head and neck a very severe blow. It occurred at night and, although he regarded the injury as a trivial one, early the next morning the appellee reported the occurrence to the chief clerk of his employer, and continued to perform his duties as a night watchman. For several days he was a little sore and bruised, but "did not think it anything serious."
Some time in March, 1932, there developed a condition in appellee's neck which affected the carriage of his head, and then he began to consult physicians, none of whom was able to give him relief or to suggest the cause of the trouble. This condition grew steadily worse, but he continued to work through the use of a brace on his neck supporting his head. Finally, the brace had to be abandoned, as it had become too painful, and on December 11, 1934, his condition had progressed to such an extent as to render further manual labor impossible, and he gave up his job.
Although on the date mentioned he had become totally and permanently disabled, it was not until May 2, 1935, that X-ray pictures of him were taken which revealed that his neck was broken. His condition was the direct and proximate result of the injury received in the course...
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