Lumbermen's Ins. Corp. v. Goodman

• Citation: 304 S.W.2d 139
• Decision Date: 06 June 1957
• Docket Number: No. 6124,6124
• Parties: LUMBERMEN'S INSURANCE CORPORATION, Appellant, v. Archie F. GOODMAN, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 139

304 S.W.2d 139

LUMBERMEN'S INSURANCE CORPORATION, Appellant, v. Archie F. GOODMAN, Appellee.

No. 6124.

Court of Civil Appeals of Texas, Beaumont.

June 6, 1957.

Rehearing Denied June 26, 1957.

Collins, Garrison, Renfrow & Zeleskey, Lufkin, for appellant.

Fulmer, Fairchild & Barnett, Nacogdoches, for appellee.

R. L. MURRAY, Chief Justice.

This is an appeal from a judgment in the district court of Nacogdoches County in a Workmen's Compensation case, in which appellee, Archie F. Goodman, was awarded benefits for total and permanent disability against the appellant, Lumbermen's Insurance Corporation.

The evidence was that the appellee suffered an injury to his back when he tripped and fell over a piece of lumber while walkig across the employer's premises at night. The whole controversy, both in the trial court and on appeal, is over the extent and duration of appellee's disability. The appellee summarizes the evidence in support of the verdict and judgment as follows:

The injury occurred January 6, 1956, and was severe enough to prevent him from walking at all. Dr. Bennett jerked his hip on the X-ray table and it 'popped'. The trial was approximately nine months later, and appellee's condition has not improved but seems to be getting worse. He cannot bend without pain, and he has a limp which he did not have before. He never had any back trouble before. Walking makes his back hurt. An awkward step causes his right leg to give way. Sitting in one position causes his back to hurt. His wife testified at night he is unable to sleep and gets up. Both specialists said his true condition depends upon his credibility and they considered him sincere. Dr. Stephenson so testified, and Dr. Brodsky said the same thing. Dr. Brodsky's diagnosis was back sprain in connection with pre-existing osteo-arthritis. He said appellee has evidence of a disk lesion, but he is unwilling to specifically make such diagnosis on a basis of the findings. Dr. Brodsky's use of the term, 'back sprain', was described as a cloak of partial ignorance as to the true nature of the injury; it could mean a disk or other different conditions. The spot of maximum tenderness was near the lumbosacral junction, according to Dr. Brodsky and Dr. Stephenson. The large spur was found just above it. The substance of Dr. Brodsky's testimony was that appellee had pre-existing osteo-arthritis which could have been aggravated by the injury; that he was unable to determine the exact nature of the damage and, therefore, called it a back sprain; that, if appellee hurt as he said he did, he was unable to do manual labor. As to the length of the disability, Dr. Brodsky said he would have some permanent disability, but he did not know the degree. He did say it was 'within the realm of medical probability' that appellee would not get one hundred percent well but would be left with a 'residue of pain' on exertion in doing heavy work from time to time.

Dr. Stephenson, in answer to a hypothetical question, said that if such hypothetical person did not respond to treatment, 'we might assume that it would be permanent' and that he could not fix a time for recovery.

It is noted that two medical experts testified on the trial; that Dr. Brodsky did not go so far as to say that Goodman's disability would be total and that Dr. Stephenson testified that he thought Goodman was well enough to return to his former job. It is because of this conflict in the evidence in regard to the extent and duration of appellee's disability that we regard the procedural errors of the trial court in the formation of the jury in the case to be of the utmost importance in deciding this appeal. It was the jury's task to decide these conflicts in the evidence, and in this instance everything was resolved by the jury in appellee's favor. Appellant's complaints about the trial court's rulings on questions arising during the formation of the jury therefore require a detailed examination of such complaints.

By its 5th and 6th points the appellant complains that it was deprived of a fair and impartial trial when the trial court held that the prospective juror Gibson was a qualified juror, over the appellant's challenge for cause, after Gibson testified on examination that he was of the opinion that if a Workmen's Compensation claimant claimed compensation he was either entitled to all or nothing, and after Gibson also testified on examination that he was of the opinion that when a Workmen's Compensation claimant paid the premium, if he claims he was injured and produces any evidence, he is entitled to all he is claiming. Gibson's name appeared Number 6 on the jury list, and after the appellant's challenge for cause was overruled Gibson's name was stricken by the appellant in exercising one of its six peremptory challenges. Appellant showed on the hearing on its motion for a new trial that if it had not been required to exercise one of its challenges on Gibson it would have been able to and would have challenged Vernel Gunn, a colored girl that had had previous claims for Workmen's Compensation benefits, and she served as a juror.

The appellant's bill of exception No. 1 shows that the following testimony was given by the prospective juror Gibson on his voir dire examination:

'Q. Your second difference was that, in your opinion, if you believed from the evidence that the man got an injury, that your opinion is that he is entitled to either all of it or none of it? A. I feel that if a man pays his paying dues on insurance, he is entitled, and, as I said, insurance companies often get off light without paying what the man is entitled to.

'Q. Do you feel that so strongly that you would require this insurance company to produce evidence to the fact that the man is not entitled to all of it? A. Yes, I would.

'Q. In other words, if the man claims he is hurt, you are going to believe him and if the insurance company does not produce any evidence, he is entitled to all of it? A. I believe I have already answered that, sir. I said if the evidence produced the man was hurt from that that he was suing for, that if he has paid for the insurance, I believe he is entitled to receive full benefit of it.

'Q. You understand that an employee on a Workmen's Compensation job does not pay any of the premium on Workmen's Compensation insurance? A. I think Mr. Fulmer answered that, and it is already figured out in their pay.

'Q. Well, that is an incorrect statement. The employee does not pay any of the premiums on Workmen's Compensation. Q. It is your belief, though, that under the Workmen's Compensation Law, the man does pay the premium? A. If I understand it right, yes.

'Q. And in view of that belief, you think that, since he pays the premium and if he claims he is injured and produces any evidence, he is entitled to all of it? A. Yes.

'Mr. Zeleskey: I believe he is disqualified, Judge.

'By Hon. Vernis Fulmer:

'Q. Let me ask you a question. Mr. Gibson, are you saying that, if a man gets hurt on the job where there is insurance, that you think he is entitled to everything he sues for, regardless, or do you mean that you think he is entitled to everything that the evidence justifies him to have? A. I stated that in the beginning, that if the evidence justified, if he is permanently disabled, give him everything he is----

'Q. That is as you said, if the evidence shows and you believe from the evidence he is permanently and totally disabled, give him everything the man asks for, but if you believe from the evidence he is just disabled for ten weeks, would you just give him that amount? That is the point, see. A. Yes.

'Q. If you believe he wasn't hurt at all, you would find he wasn't hurt? A. Sure, I am under oath to that effect.

'Q. And if you believe he was hurt and wasn't entitled to total disability but just partial, you would go according to the evidence on that? Would you go according to the evidence on everything? A. The evidence is first, yes, sir.

'Q. You understand that law fixes a limit, a maximum limit that he can get under whatever evidence is produced, and the point the Judge wants to know is whether you are going to take the oath here and stick with that and follow it as best you can. That is all anybody can do. As best you can, to follow the law as he gives you and the directions in the charge and the evidence that comes from the witness stand. A. That is the reason I took my oath.

'Q. And the fact that you know of some cases where the insurance company got off light, you don't mean to let that play any part in this particular case? A. No, I would go according to the evidence.

'Q. You would go according to the evidence? You will discard any talk you heard from the barber shop, anything you ever knew or any personal experience you had, if you had any, and try it on the law and the evidence here? A. I merely answered that on the question you asked Mr. Barrett, did he know of any occasion or thought any company got off light.

'Q. On the other hand, do you know of some cases where you thought maybe the fellow got to the insurance company a little when he wasn't entitled to it? A. Off hand, I don't think. It's possible that is true.

'Q. Would you let either one of those prejudice you in this case, or would you try this purely upon the facts in this case? A. The evidence.

'By Hon. Ralph Zeleskey:

'Q. If Mr. Goodman testified he had this injury and he can't work and they produce a doctor that says he can't work, are you of the opinion that you would require this insurance company to show you that he wasn't hurt and not entitled to anything?

'Mr. Fulmer: I want to state, Judge, that that is not a proper question, let him state in the question the hypothesis that another doctor testified that he could work.

'Court: I am going to sustain the objection. Mr. Gibson, are you testifying now that, if you were taken on this jury and you believed that this man here, this plaintiff here, was...