Lott v. American Surety Co. of New York

• Citation: 140 S.W.2d 928
• Decision Date: 16 May 1940
• Docket Number: No. 10990.,10990.
• Parties: LOTT v. AMERICAN SURETY CO. OF NEW YORK.
• Court: Court of Appeals of Texas

140 S.W.2d 928

LOTT v. AMERICAN SURETY CO. OF NEW YORK.

No. 10990.

Court of Civil Appeals of Texas. Galveston.

May 16, 1940.

Rehearing Denied June 6, 1940.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit under the Workmen's Compensation Act by Henry D. Lott against the American Surety Company of New York to set aside an award of the Industrial Accident Board. From a judgment for the defendant, the plaintiff appeals.

Reversed and remanded.

Allen, Helm & Jacobs, S. M. Helm, and G. E. Pike, all of Houston, for appellant.

A. D. Dyess, of Houston (Chester H. Johnson, of Houston, of counsel), for appellee.

GRAVES, Justice.

Appellant was plaintiff below, appellee defendant; this statement, admitted to be substantially correct, is taken from the former's brief:

"Plaintiff, in appealing from an award of the Industrial Accident Board after both plaintiff and defendant duly gave notice of their dissatisfaction therewith, duly filed this suit against defendant on March 17, 1939, in the district court of Harris County, Texas, to set aside said award and to recover his workmen's compensation from defendant as the workmen's compensation insurance carrier for plaintiff's employer, Phoenix Engineering Corporation, a subscriber under the Workmen's Compensation Act. Plaintiff pleaded accidental and general injuries hereinafter more fully set out, sustained by him as an employee of Phoenix Engineering Corporation, engaged in the usual course of his employment in Harris County, Texas, on August 2, 1938, in having a supporting form and reinforced steel wall fall upon his back as he performed his journeyman carpenter duties in the erection of a large addition to one of the Houston Lighting & Power Company plants, as a result whereof he was totally and permanently disabled to work and earn money; or, alternatively, he was totally disabled for 400 weeks after the date of accident, and after the termination of total disability would be partially disabled to an extent of 90% in excess of 300 weeks, entitling plaintiff to the maximum compensation, or such portion thereof as the jury might find based upon an average daily wage of $9. Alleged alternatively under all three methods of computation of average weekly wage set out by the Workmen's Compensation Act.

"Plaintiff further pleaded facts justifying lump-sum payment, for which he also prayed.

"Defendant filed an unsworn answer, consisting only of a general demurrer, which was neither presented, urged, nor ruled upon, and a general denial.

"This cause came on to be tried before a jury before the Sixty-First Judicial District Court in Harris County, Texas, on the 5th day of June, 1939, and after the plaintiff rested his primary case on June 6, 1939, and before defendant had offered any evidence, the Court, after argument of counsel and over plaintiff's objection, granted defendant's motion to instruct the jury peremptorily to return a verdict against the plaintiff for the defendant, to which plaintiff excepted in open court.

"Pursuant to the Court's instruction, the jury so returned its verdict, and the Court on the 7th day of June, 1939, rendered judgment thereon that plaintiff take nothing and defendant go hence without day and recover its costs, to which action of the Court in entering such judgment, the plaintiff then and there in open court duly excepted."

The single question of law the appeal presents is whether, under the evidence adduced in appellant's behalf, there was an issue of fact raised over any material feature of the cause-of-action he so declared upon; and that inquiry is determinable upon this principle:

"The settled rule is that a verdict should not be directed for defendant, `if, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found for the plaintiff.' Hence, a direction of verdict for defendant is error if on the plaintiff's pleadings and evidence any issue arises that the jury might properly determine in favor of plaintiff, or if on any aspect of the case made, plaintiff is entitled to recover." 41 Tex.Jur., page 949, paragraph 177, and foot-note cited authorities.

Essentially that same rule, applied in a compensation case like the one at bar, but dealing with the sufficiency of the evidence to support a verdict, rather than to raise an issue, where a somewhat stronger proof is required, is thus stated:

"Where it can reasonably be inferred from the evidence that the plaintiff's injuries are permanent and totally disable him from performing the usual tasks of a workman in such way as to enable him to procure and retain employment, a verdict in his favor on the issues of total permanent incapacity will be affirmed. * * * A similar rule obtains in respect of the sufficiency of the evidence to establish partial disability.

"The issue as to disability may be established by the testimony of the claimant alone, even though such testimony is contradicted by medical witnesses." 45 Tex. Jur., pages 592, 593, paragraph 163, and cited authorities.

When the evidence here is appraised in the light of these principles, bearing in mind the while that it takes—as just indicated—less evidence to merely raise an issue than to support a verdict, it seems clear an issue of fact was raised over whether or not the appellant was either totally and permanently, or totally for a time and thereafter partially, disabled, as so pled by him.

He himself thus makes what is deemed— with only immaterial editing added—a sufficient resume of that evidence in his brief, much of it consisting of his own testimony:

"On August 2, 1938, while plaintiff was working as journeyman-carpenter for Phoenix Engineering Corporation, in the City of Houston, a supporting form therefor and a reinforced steel wall fell upon him. His backbone and ribs were injured; and he was injured inside, to what extent he didn't know but so as to not be able to breathe. He couldn't bend reasonably, and his entire back was affected. His head and his right leg were also affected. He stayed under the treatment of Dr. J. T. Oliver, of Parkview Hospital, until October 24, and then Dr. B. D. Thompson treated him regularly from October 26 until the date of this trial for back injury and nerve condition. Dr. Oliver told him he had two broken ribs and an injured backbone. He noticed a change in his nerves, at times a lot for the better after Dr. Thompson treated him, and his back got better; the sharp pains left but `that grind' remained. He thought it was out of place. `It feels like it is twisted out of place. I am in constant misery all the time, and in pain.' `I know I can't get out and lift and I don't try it.' `I have not been where I could bend, and the minute I even get the start of bending, the muscles will contract and I am in pain. My back never got stiff where I couldn't bend, but I can't breath when I bend.' The pain `has affected my ability to work, the weakening of my back, I am not able to lift anything, except under a physical and mental strain.'

"The duties of a journeyman-carpenter are...