Larnce v. Massachusetts Bonding & Ins. Co., 1722.
| Decision Date | 20 October 1938 |
| Docket Number | No. 1722.,1722. |
| Citation | 121 S.W.2d 392 |
| Parties | LARNCE v. MASSACHUSETTS BONDING & INS. CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Nineteenth District, McLennan County; Sam R. Scott, Judge.
Action by Oscar O. Larnce against the Massachusetts Bonding & Insurance Company to recover on an accident insurance policy for total disability. Judgment for defendant, and plaintiff appeals.
Affirmed.
Jas. R. Jenkins and W. L. Eason, both of Waco, for appellant.
Naman, Howell & Brooks, of Waco, for appellee.
Oscar O. Larnce brought this suit against Massachusetts Bonding & Insurance Company to recover on an accident insurance policy. The jury returned a verdict in favor of the defendant and judgment was entered accordingly. The plaintiff appealed.
The policy sued on provided that if the insured through accidental means should become wholly and continuously disabled from performing any and every duty pertaining to his occupation, the insurance company would pay him $100 per month during the period of such total disability, not exceeding five years, and in the event of partial disability the company would pay him $50 per month not exceeding six months. This suit involves only the right to recover for the sums due under the total disability clause. The plaintiff alleged that while crossing a railway track he ran his automobile against a switch stand, producing an injury to his back in the sacro-iliac region, which resulted in his total disability. The jury found that he did not receive an injury to his back and that he was not totally disabled. The appellant contends that these findings are contrary to the undisputed evidence and against the overwhelming weight of the evidence.
In passing on the sufficiency of the evidence to support the verdict, we are required to view the evidence in the light most favorable to the verdict. Appellant's testimony tended to show that the injury resulted in a separation of the bones in the sacro-iliac region. The appellee offered evidence to the effect that an injury of that character would result in great pain and would immediately disable the party so injured. The appellant admitted that after the accident occurred on Saturday night he drove his automobile, a T-Model Ford, to his home, a distance of three or four miles, and that he drove the same car to town the following Monday morning and that except for a short period during which he was in the hospital for an operation for hernia he had continued to drive the same car up to the time of the trial. Four different doctors testified that they were unable to find any evidence of injury to the part of the body complained of. Several experts testified that the X-ray pictures did not show any injury to the region in question. Although there was much evidence to the contrary, the evidence above referred to, we think, was sufficient to raise an issue of fact for the jury, and since the jury resolved that issue against the appellant, we are bound thereby. The assignment is overruled.
Appellant alleges that there was misconduct of the jury in that the jury first decided to render a verdict in favor of the appellee and then undertook to so answer the issues as to accomplish that result. The record, however, does not bear out this contention. The only circumstance referred to by appellant to support his contention is the fact that the jury during their deliberation sent a note to the court inquiring as to the effect of their answers to certain issues. The court promptly informed the jury to answer the issues in accordance with the main charge to the jury. This circumstance alone was not sufficient to establish misconduct of the nature complained of.
Appellant introduced as his witnesses two physicians, one of whom had examined and treated appellant for his injuries, and the other had made X-ray pictures of his sacro-iliac region. Each of these witnesses testified that in his opinion appellant was...
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