Muro v. Houston Fire & Cas. Ins. Co.

• Decision Date: 30 September 1959
• Docket Number: No. 13502,13502
• Court: Texas Court of Appeals
• Parties: Solomon A. MURO, Appellant, v. HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellee.

Page 326

329 S.W.2d 326

Solomon A. MURO, Appellant, v. HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellee.

No. 13502.

Court of Civil Appeals of Texas, San Antonio.

Sept. 30, 1959.

Rehearing Denied Oct. 28, 1959.

Further Rehearing Denied Nov. 25, 1959.

Putman & Putman, San Antonio, for appellant.

Carl Wright Johnson, Edw. P. Fahey, San Antonio, for appellee.

POPE, Justice.

This is a workman's compensation case. The main point is whether the trial court correctly held that no evidence supports jury findings of total and permanent incapacity to Solomon Muro's back. Plaintiff claimed and obtained jury findings for both a general injury and a specific foot injury. Muro moved for judgment for the general injury, but the trial court rendered judgment notwithstanding the verdict.

Muro fell from a scaffold on January 28, 1955. The jury found that he sustained an accidental injury to his back which produced an incapacity to work, and that the incapacity was total and permanent. The trial court disregarded those findings, except the one that Muro sustained an accidental injury to his back when he fell. The jury also found that Muro sustained an accidental injury to his left foot which was the producing cause of the loss of use of his foot, and that the loss was total and permanent. The court also disregarded the findings that the total loss of use of the foot was permanent. The court then made original findings that Muro suffered six months' total temporary loss of use of his left foot, followed by thirty per cent partial permanent loss of use of the foot, and rendered judgment accordingly.

We must determine whether there is evidence, more than a scintilla, which will support the findings of a general injury to Muro's back. 'No evidence' presents a question of law, and the measuring rod requires us to view the evidence most favorably in support of the findings. In our statement of the facts we need only concern ourselves with the evidence which supports the jury's verdict. Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682. When we do this, we conclude that the findings with respect to the general injury are supported by the evidence.

On January 28, 1955, Muro was working for Mosel-Terrell, as a sheet metal worker. This was hard labor. He had been steadily employed. He was standing on a scaffold ten feet above a concrete floor when his foreman called to him. He turned and fell to the floor with his feet first hitting the concrete. He then fell forward. Muro weighed 225 pounds. He was taken to the hospital with a broken foot, an injured wrist, and complaints about his back.

Antonio Pena testified that after the accident, and up to the time of the trial, Muro limped, did not walk right, and would drag around. Pena refused to employ Muro in April of 1955. In January, 1959, when this case was tried, Pena, an experienced foreman who hires and fired men, stated that he would not be able to hire Muro as a sheet metal helper because of his physical condition. Harvey Brown testified that he was general foreman for Mosel-Terrell when Muro was hurt. A year and a half later, Brown hired Muro for some work at his home. Muro was not able to do the work of a common laborer and was unable to keep up with the pace of the work. After working for Brown for about two hours he was 'all done in.' Before the accident Muro had done this same kind of work for Brown and was able to give a full day's work. Muro has a 'definite limp and is kind of hunched over a little bit.' Brown said that he would not now be able to hire or keep Muro on a job as a common laborer.

Mrs. Jose Moreno, a neighbor, testified that before the accident Muro was ablebodied, worked every day, and used to work in the yard. After the accident 'he is limping; he is not working; he has got a stiff back.'

Cecilia Muro, plaintiff's daughter, stated that her father worked regularly every day before the accident and was strong and healthy. After the accident, he works about a third of the time. He is tired all the time, limps, and has trouble walking. He has difficulty getting out of bed in the morning, and she helps him. Muro's wife testified that her husband was strong and healthy before the accident, walked straight, and voiced no complaints. After the accident and while in the hospital he complained about hurting, 'especially his back and his wrist.' Right after the accident his pain was relieved by shots. The next day he again moaned and groaned with pain. Since the accident, he has regularly and daily complained about pain in his back. This condition did not exist before the accident. Before the accident, he worked in the yard, did heavy lifting and painted. After the accident, he has been able to do little work, no heavy lifting, and no painting.

Muro himself described the fall and his injuries. When he fell his feet and then his buttocks hit the concrete. His back is still hurting. 'It seems to me like it is getting worse; it isn't getting any better.' Because he was unable to sleep at night, hurting and in pain, six months after the accident he went to see Dr. Haley. Muro said he still has pain 'all the time' in his back. He can not walk or bend without pain. His back, foot, and kness never got well. He can not lift and carry like he used to. He is unable to balance himself, cannot do hard work or physical labor. He can not climb, dig ditches, use an air hammer or a tamping machine. While in the witness chair he said that his back was hurting him because he was sitting down.

Fernando Trevino, Muro's brother-in-law, testified that before the accident he had never employed Muro, but he was then an average worker. Since the accident he is a very slow worker, walks with a limp and does not get around like he used to. He has employed Muro in his work of remodeling houses, for about a year. Muro does not do as good a job as other laborers, and Trevino would not hire him if he were not related to him. He is a very slow worker. He hires him because 'I want to help him out as long as I can.' When Muro works Trevino pays him the regular wage scale.

Dr. Orin McMillan first treated Muro for a fracture of the left heel bone, pain in his left wrist and low back pain. He said that Muro had tenderness in his lower back after the fall. In November, 1956, some twenty-two months after the fall, Dr. McMillan again took X-rays of Muro's spine, his knees and shoulder, which showed some hypertrophic spurring, but no different from the showing in January, 1955, and Dr. McMillan expressed the opinion that this was normal. The doctor expressed the opinion that Muro's only incapacity was to his left foot and that it was a thirty per cent incapacity. Dr. McMillan diagnosed the back injury as a sprain which was soon corrected. He said that a low back sprain heals by scar tissue and the disability varies with the individual. Muro's back was very painful for a month. He said that force can aggravate existing arthritis. He had found blood cells in Muro's urine, but considered them minute and unimportant.

Dr. Haley was the other medical witness, Muro consulted him in October, 1955. The doctor examined the original record of the hospital chart which had recorded pain in the left heel, left wrist and low back pain. Dr. Haley ten months after the accident diagnosed Muro's condition as a fracture of the left heel, a back strain or sprain, and a trauma to both knees. At that time, the ankle was swollen and painful and Muro had pain in his back. He said that the condition of the foot upset the center of gravity of the body, it throws the whole mechanics of the man's condition off, he can not maintain the natural balance of the body and can not work at heights above the ground. The swelling in the foot is permanent. Dr. Haley at one point in his testimony made this significant statement:

'I think his back is injured. I think he has a certain amount of disability. I think he gets along fairly good in the summer time, but this type of weather is going to cause him a lot of pain. I think it depends entirely upon the type of work that he does.'

He testified directly that he thought the fall caused the lumbo-sacral sprain. He stated that a pre-existing arthritic condition with a lumbo-sacral sprain imposed upon it is a painful condition which restricts body movements such as forward bending. He stated: 'I believe this man, since the injury, cannot do the work of lifting or the manual work that he did before.' Heavy lifting such as carrying a hod of brick would cause pain in Muro's back. Dr. Haley would not pass Muro for a job. This testimony related to Muro's condition at the time of trial, more than three years after the accident.

Dr. Haley gave some conflicting opinions which defendant relies upon. In a 'no evidence' case, however, our task is to find those elements of evidence which support a finding rather than to weigh contradictory statements even of the same witness. Dr. Haley stated that Muro complained of back injury on several visits to his office. He prescribed sodium salicylate, vitamin B-12, APC and aspirin tablets, and stated that such medication is given for indefinite muscular pains, muscular arthritis, lumbo-sacro sprains and lumbago pains. As late as May, 1958, he was still giving that treatment to Muro. With respect to the specific injury, Dr. Haley expressed the opinion that the deformity is permanent and that it affects Muro's balance. He stated that Muro's back has to make allowance for that, that to favor his foot, his back is bent, and his pelvis is tilted, which sometimes results in pain. He does not believe Muro can do heavy manual labor for a prolonged period.

From several witnesses--lay, party, and medical--there is evidence that Muro's back was injured in the fall, that it has continuously pained him to the time of trial, that it is stiff and pains him when he bends forward, and that he was treated for low back pain for an extended period after the accident....