Lopez v. New Amsterdam Casualty Company
| Decision Date | 10 December 1958 |
| Docket Number | No. 17330.,17330. |
| Citation | 261 F.2d 659 |
| Parties | Gregorio LOPEZ and wife, Inez A. Lopez, Appellants, v. NEW AMSTERDAM CASUALTY COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
G. Woodson Morris, Guy Bonham, San Antonio, Tex., for appellants.
Charles W. Barrow, Beckmann, Stanard, Wood, Barrow & Vance, San Antonio, Tex., for appellee.
Before TUTTLE, JONES and BROWN, Circuit Judges.
The appellant, Inez A. Lopez, was employed by Finesilver Manufacturing Company, of San Antonio, Texas. The appellee, New Amsterdam Casualty Company, had issued a policy of insurance to the employer, Finesilver Manufacturing Company, to cover its liability under the Workmen's Compensation Law of Texas Vernon's Annotated Civil Statutes, art. 8306 et seq. Mrs. Lopez and her husband sued the appellee, asserting by an amended complaint that Mrs. Lopez, while at work on January 8, 1957, lifted a bundle of bluejeans, sustained injuries in so doing, and became entitled to an award of workmen's compensation. The casualty company denied liability. At the trial Mrs. Lopez testified that, after lifting the bundle, she had an abdominal pain on her right side — burning and itching on the inside. She was sent by her forelady to a doctor who made a diagnosis of muscular sprain and recommended electric heat and rest. Thereafter Mrs. Lopez consulted a doctor of her own selection who sent her to another for consultation. These doctors diagnosed Mrs. Lopez' condition as a hernia and told her that surgery was necessary. One of them operated on her. After the operation the doctor who had performed the operation told her he had made a mistake, that she did not have a hernia, and that he had removed her appendix. In response to her statement that nothing was wrong with her appendix, the doctor commented that maybe the next two or three years she would have. Neither of the two doctors who made the diagnosis of hernia testified. What we have said about them and their connection with the case is learned from the testimony of Mrs. Lopez.
Some months after the operation Mrs. Lopez consulted Dr. Frank F. Heger who testified as a witness on her behalf. He found no evidence of a hernia. He did find that she had been operated upon and that an incision of six to eight inches in length had been made through her abdominal wall, and at the line of the incision she had "a pretty good sized keloid". This, according to Dr. Heger, was permanent, painful and disabling. A doctor, who was the physician for the Finesilver Manufacturing Company, testified that he had examined Mrs. Lopez in 1955 to determine whether she had a hernia and found none. At that time Mrs. Lopez had a history of an injury in the right groin in December of 1953. He again saw her, on five or six occasions, after the incident of January 8, 1957, and diagnosed her condition as a muscle injury or sprain for which he prescribed rest and physiotherapy.
Dr. Heger said, without qualification, that Mrs. Lopez had no hernia and all of the other testimony on this point was to the same effect. He was asked how he accounted for the itching and burning sensation which Mrs. Lopez had after the accident took place. He answered that the itching and burning sensation was due to the keloid, and the only time she had difficulty "with the right side is when she lifted this bundle, I think its approximately a year ago." He found a tenderness in the right side but said he had no idea as to the cause of it. Nothing in the testimony indicated that Mrs. Lopez had any condition resulting from the lifting of the bundle that required surgery.
Dr. Heger was asked if he could tell from Mrs. Lopez' incision the type and character of the operation, and he responded that "when we do surgery in a woman and your diagnosis is somewhat doubtful, that you're not too sure of just what will happen, you make a midline incision." "The purpose of it", he stated, "is that you can go, if you find pathology on the right side, you get adequate exposure; and if you have pathology on the left side...
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Wood v. Alves Service Transp., Inc.
...marriage of the daughter was held proper as bearing on damage, at least up to the time of her marriage. See also Lopez v. New Amsterdam Casualty Company, 5 Cir., 261 F.2d 659, and Sipes v. Michigan Cent. R. Co., 231 Mich. 404, 204 N.W. 84, 85, where the court 'The widow was 21 years of age ......
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Hartford Acc. & Indem. Co. v. Thurmond
...v. Sosa, 425 S.W.2d 871 (Tex.Civ.App.--San Antonio 1968, 432 S.W.2d 515, writ ref'd n.r.e.). See also Lopez v. New Amsterdam Casualty Company, 261 F.2d 659 (C.A. Fifth Cir. 1958). As Dr. Cannon has previously testified, had it not been for the occurrence of August 13, 1970, he would not hav......