National Mut. Casualty Co. v. Lowery

• Court: Texas Supreme Court
• Writing for the Court: Critz
• Citation: National Mut. Casualty Co. v. Lowery, 148 S.W.2d 1089, 136 Tex. 188 (Tex. 1940)
• Decision Date: 27 March 1940
• Docket Number: No. 7721.,7721.
• Parties: NATIONAL MUT. CASUALTY CO. v. LOWERY.

Page 1089

148 S.W.2d 1089

NATIONAL MUT. CASUALTY CO. v. LOWERY.

No. 7721.

Supreme Court of Texas.

March 27, 1940.

Motion for Rehearing Overruled March 26, 1941.

Error to Court of Civil Appeals, of Eleventh Supreme Judicial District.

Suit under the Workmen's Compensation Act by Thomas Jefferson Lowery to set aside an award of the Industrial Accident Board in favor of the National Mutual Casualty Company. Judgment for claimant was affirmed by Court of Civil Appeals, 135 S.W.2d 1044, and defendant brings error.

Judgments of the district court and the Court of Civil Appeals affirmed.

Wagstaff, Harwell, Douthit & Alvis, of Abilene, for plaintiff in error.

J. D. Barker, of Sweetwater, Herman E. Charles, of Encino, N. M., and Armstrong, Cranford, Barker & Bedford and Owen D. Barker, all of Galveston, for defendant in error.

CRITZ, Justice.

This is a Workmen's Compensation case. It was filed in the District Court of Fisher County, Texas, by defendant in error, Thomas Jefferson Lowery, against the plaintiff in error, National Mutual Casualty Company, hereinafter referred to as the Casualty Company. Trial in the district court, with the aid of a jury, resulted in a verdict and judgment for Lowery. This judgment was affirmed by the Eastland Court of Civil Appeals. 135 S.W.2d 1044.

This record, interpreted in the light of the verdict of the jury, shows that Lowery on the 9th day of September, 1937, received an injury; that such injury was received while working in the course of employment for National Tank Company that National Tank Company was subject to and insured under our Workmen's Compensation Laws; that National Mutual Casualty Company was National Tank Company's compensation insurance carrier; that Lowery's injury consisted of or resulted in a hernia, under circumstances which may have rendered it compensable as a specific injury; that Lowery filed claim for compensation with the Industrial Accident Board; that the Casualty Company was named as National Tank Company's compensation insurance carrier in the proceedings before the Board; that neither before nor during the proceedings before the Board did such insurance carrier acknowledge any liability to Lowery, or tender him a surgical operation for his hernia; that the Board heard and considered Lowery's application or claim; that the Board refused Lowery any relief whatever, thereby refusing to order this insurance carrier to furnish a surgical operation; that Lowery duly appealed to the district court; that in the trial in the district court Lowery claimed that his hernia injury had resulted in permanent total incapacity; that the district court so determined, and awarded compensation as for a general, and not a specific, injury. We here pause to note that Lowery alleged in his petition in the district court that he had been willing to undergo an operation, unless it was more than ordinarily unsafe for him to do so. Also the jury found that Lowery was willing to submit to an operation, and that the Casualty Company had refused to furnish it.

By various assignments of error the Casualty Company contends that under the above record the Court of Civil Appeals erred in affirming the judgment of the district court, because in doing so the Court of Civil Appeals erroneously ruled that the Casualty Company was, and is, obligated or liable to compensate Lowery as for a general, and not a specific, injury.

A reading of Article 8306 of our Workmen's Compensation Laws will disclose that it divides compensable injuries into two main classes: (a) General injuries, and (b) specific injuries. As we interpret the pertinent provisions of Article 8306, all compensable injuries must be compensated as general injuries unless such statutes specially classify same as the subject of specific compensation. It follows that in the case at bar, Lowery must be compensated as for a general injury unless we can find some statutory authority to compensate him for a specific injury. If such authority exists, it must be found in that part of Article 8306, § 12b, which we shall here quote.

"In all such cases where liability for compensation exists, the association shall provide competent surgical treatment by radical operation. In case the injured employe refuses to submit to the operation, the board shall immediately order a medical examination of such employe by a physician or physicians of its own selection at a time and place to be by them named, at which examination the employe and the association, or either of them, shall have the right to have his or their physician present. The physician or physicians so selected shall make to the board a written report, signed and sworn to, setting forth the facts developed at such examination and giving his or their opinion as to the advisability or non-advisability of an operation. If it be shown to the board by such examination and such report thereof and the expert opinions thereon that the employe has any chronic disease or is otherwise in such physical condition as to render it more than ordinarily unsafe to submit to such operation he shall, if unwilling to submit to the operation, be entitled to compensation for incapacity under the general provisions of this law. If the examination and the written report thereof and the expert...