Meyer v. Great Am. Indem. Co.
| Decision Date | 01 June 1955 |
| Docket Number | No. A-4991,A-4991 |
| Parties | Ed MEYER, Petitioner, v. GREAT AMERICAN INDEMNITY COMPANY, Respondent. |
| Court | Texas Supreme Court |
Talbert & Giessel, Houston, for petitioner.
Kemper & Wilson and Vincent W. Rehmet, Houston, for respondent.
This is a compensation case. Petitioner was injured when the wheel of a laundry buggy dropped on his right great toe. There were no broken bones, but the injury did not respond to treatment and gangrene set in. It was finally determined that the failure of the toe to heal was due to an impairment of blood circulation caused by a pre-existing diabetic condition. The supply of blood to the toe was then increased by an operation on the nerves in petitioner's back, and the toe healed.
Petitioner alleged an extension of the injury, and respondent replied with a general denial and a special plea that the injury was confined to total loss of the toe and did not extend to or affect any other portion of the body. The doctor who was called by petitioner stated that the injury to the toe had resulted in an unbalanced supply of blood in the right leg, which caused pain and weakness in such leg below the knee. Respondent offered another doctor whose testimony supported the conclusion that the toe injury had not affected the leg and that no incapacity to the leg had resulted from the injury. Basing its judgment upon a stipulation of the parties and certain findings of the jury in response to special issues, the trial court awarded petitioner compensation for 12 weeks total general incapacity and for an additional 125 weeks for permanent partial loss of use of the right leg below the knee.
Special Issue No. 1, which the jury answered in the affirmative and which is one of the issues upon which the judgment of the trial court is predicated, reads as follows:
'Do you find from a preponderance of the evidence that the accidental injury to the plaintiff's right great toe extended to or affected the right leg below the knee of the plaintiff, thereby causing incapacity to such right leg below the knee?'
Respondent duly objected to the submission of the issue upon a number of grounds, including: (1) That the same is duplicitous in that it inquires of the jury, first, whether the injury to the plaintiff's toe extended to or affected the right leg below the knee, and, second, whether the injury caused or resulted in incapacity to the right leg below the knee, and (2) that the same constitutes a comment on the weight of the evidence in that it assumes that incapacity to the leg below the knee resulted from the injury to the toe, and also assumes that in the event the jury believes that the injury to the toe extended to or affected the leg below the knee, some incapacity to the leg below the knee resulted therefrom. The Court of Civil Appeals concluded that the trial court erred in overruling such objections, and reversed and remanded the case for a new trial. , 272 S.W.2d 569. We are unable to agree with the conclusion of the Court of Civil Appeals.
In Denbow v. Standard Acc. Ins. Co., 143 Tex. 455, 186 S.W.2d 236, 239, it was held that the answers of the jury to certain special issues, one of which was submitted in negative form, were not in conflict. After pointing out the importance of submitting issues in simple language, and, if possible, in the affirmative, the opinion suggests:
'Issue No. 12 could have been submitted in the affirmative in substantially the same language by framing the issue as follows: 'Did the injury, if any, to Denbow's left wrist affect parts of his body other than his hand and wrist, thereby causing disability?' If an instruction on the burden of proof had been desired, this issue could have been followed by an instruction as follows: 'If you find from a preponderance of the evidence that the injury to the left wrist affected parts of the body other than the hand and wrist, thereby producing disability, you will answer this issue, 'Yes.' Otherwise you will answer it, 'No'.''
It will be observed that with the exception of the manner of placing the burden of proof, the issue submitted in the present case follows the form suggested in the Denbow case. While the court was not there confronted with the objections made by our respondent and the suggestion as to the form of issue was not necessary to a decision of the case, we must assume that the court gave proper consideration to fundamental principles of special issue submission. It is our opinion, therefore, that the cited case affords some support for the action of the trial court in the present case.
After careful consideration of Special Issue No. 1 and the meanings which the jury might reasonably have assigned to the language used, we believe it is unlikely that the jurors were confused thereby or led to believe that the trial court was of the opinion that there was an extension of injury or that the petitioner sustained incapacity to the right leg below the knee, or that incapacity was immaterial or would necessarily follow if they concluded that there was an extension of injury. The inquiry does not, in our opinion, assume any of the facts in controversy.
The issue submitted in Johnson v. Zurich General Accident & Liability Ins. Co., 146 Tex. 232, 205 S.W.2d 353, cited by respondent, is quite different. There the trial court (202 S.W.2d 262) inquired of the jury whether the injury was sutained 'because of heat exhaustion experienced' on a certain date, and it was held that the issue was objectionable because it assumed that the plaintiff experienced heat exhaustion on the date indicated. The issue in the present case does not read 'thereby causing the incapacity to such right leg' or 'thereby causing incapacity sustained by plaintiff.' We also note that in Texas Employers' Ins. Ass'n v. Rowell, Tex.Civ.App., 104 S.W.2d 613, 615 (no writ history), an issue requiring the jury to find whether the plaintiff sustained an injury '(as) a result of heat exhaustion or sun stroke' was held not to constitute a comment on the weight of the evidence. The Rowell and Zurich cases are discussed and distinguished in Eubanks v. Texas Employers' Ins. Ass'n, 151 Tex. 67, 246 S.W.2d 467, 468, in which it was held that an issue inquiring whether the plaintiff sustained personal injuries "as a result of being struck a blow on his head by a piece of timber", was not duplicitous and did not constitute a comment on the weight of the evidence.
We agree with the Court of Civil Appeals that Special Issue No. 1 includes at least two elements, extension of injury and resulting incapacity. The rule as to liability in cases involving an alleged extension of a specific injury was stated in Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, 313, as follows: ...
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