Jones v. Texas Emp. Ins. Ass'n

Decision Date06 January 1965
Docket NumberNo. 11253,11253
Citation386 S.W.2d 615
PartiesKenneth Ray JONES, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.
CourtTexas Court of Appeals

Warren Burnett and Robert D. Pue, Odessa, for appellant.

Hardeman, Smith & Foy, San Angelo, for appellee.

PHILLIPS, Justice.

This is an action brought under the Texas Workmen's Compensation Act, Article 8306, Vernon's Ann.Civ.St. The appellant, the plaintiff below, brought suit alleging that in the course of his employment he sustained injuries to his right leg, which injuries extended to and affected other parts of his body and resulted in his total and permanent disability under the Compensation Act. For such total and permanent disability appellant sought compensation in a lump sum under the provisions of Section 15a of Article 8306.

The case was tried before a jury that found in answer to special issues that there was total but temporary loss of the use of the right leg for nine weeks and ten per cent partial and permanent loss of the use of the right leg. The jury found that the injury was confined to the right leg.

Judgment was entered upon the verdict and from that judgment appellant has appealed to this Court.

Appellant is before us on two points of error, the first being: 'The trial court erred in refusing to submit Appellant's Requested Special Instruction attached to Special Issue No. One, which tendered in writing a substantially correct definition of "TOTAL LOSS OF USE" of a member and, in overruling appellant's objection to the submission of a definition of "TOTAL LOSS OF USE" of a member which failed to submit such member's loss of substantial use as a member of the body disjunctively from such member's condition such that a workman cannot procure and retain employment requiring the use of the member. Such error amounted to a denial of appellant's rights and was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this Cause and was reversible error.'

Plaintiff's (appellant) objection to the definition of total loss of use was as follows:

'Plaintiff objects to the definition of 'total loss of use' as a definition herein, and specifically requests the Court to give the definition approved by the Supreme Court in the case of Seabolt vs. The Travelers Insurance Company, for the reason that it fairly and reasonably submits total loss of use of a member.'

Appellant then tendered the court in writing the definition of 'total loss of use' as defined in Travelers Insurance Company v. Seabolt, Tex., 361 S.W.2d 204.

Appellant contends that his request is governed by Rule 279, Texas Rules of Civil Procedure, wherein failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.

Appellant had been working in the oil fields or doing construction work either of which jobs requires the unimpaired use of his arms and legs. Upon reviewing the record we have concluded that there was evidence before the jury from which they could have reasonably concluded that the total loss of use of the legs was permanent if the correct definition of total loss of use had been given them. The requested definition from Travelers Insurance Co. v. Seabolt is as follows:

'A total loss of the use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.'

As to evidence of whether appellant could procure and retain employment requiring the use of the member, the element omitted from the charge submitted, we find testimony that it was dangerous for appellant to drive in traffic, that he had a limp, that his leg was 'always swelling up around the knee cap;' that his leg sometimes 'gave away under him' etc.

In Travelers, the Supreme Court pointed out that he above quoted definition was a somewhat broader concept and one which will in most instances be more favorable to the injured workman. That although a member may possess some utility as a part of the body, if its condition be such as to prevent the workman from procuring and retaining employment requiring the use of the injured...

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1 cases
  • Texas Employers' Insurance Association v. Jones, A-10628
    • United States
    • Texas Supreme Court
    • 14 July 1965
    ...by the Court of Civil Appeals upon the ground that the issue of total loss of use of the leg had not been properly submitted to the jury. 386 S.W.2d 615. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the District (1) The appeal turns upon the sufficiency o......

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