Oilmen's Reciprocal Ass'n v. Hayes
| Decision Date | 28 May 1927 |
| Docket Number | (No. 1543.) |
| Citation | 295 S.W. 675 |
| Parties | OILMEN'S RECIPROCAL ASS'N v. HAYES. |
| Court | Texas Court of Appeals |
Appeal from District Court, Liberty County; Thos. B. Coe, Judge.
Proceeding under the Workmen's Compensation Act by Thos. L. Hayes, opposed by the Humble Oil & Refining Company, employer, and the Oilmen's Reciprocal Association, insurer. Compensation was denied, and claimant files suit in the district court, appealing from the award of the Industrial Accident Board. Judgment for plaintiff, and the insurer appeals. Affirmed.
King, Battaile & Sonfield, of Houston, for appellant.
Morris, Sewell & Morris, of Houston, for appellee.
O'QUINN, J.
Appellee, Hayes, filed suit in the district court of Liberty county, Tex., appealing from an award of the Industrial Accident Board denying him compensation in a claim against appellant. He alleged that on March 16, 1925, he was injured in the course of his employment with the Humble Oil & Refining Company; that said company was a subscriber under the Workmen's Compensation Act of Texas, and carried a policy of insurance with appellant; that he was injured by particles of steel, iron, iron rust, and other substances being violently thrown into his eyes from an old iron boiler when it slipped and fell, while he and other employees were handling same, which injury caused him total blindness for a period of 10 weeks; that said injury greatly impaired his vision in both eyes, and as a result of same he lost 75 per cent. of the vision of both eyes, which loss was permanent; that by reason of such injury he was entitled to $20 per week for a period of 10 weeks for the total disability suffered, and further entitled to 75 per cent. of $20, or $15 per week, for a period of 390 weeks, by reason of the permanent partial disability to his eyes.
Appellant answered by general demurrer, several special exceptions, and a general denial. The case was tried to a jury on special issues, in answer to which the jury found (a) that Hayes was injured in the course of his employment with the Humble Oil & Refining Company on March 16, 1925; (b) that his average weekly wage was $35; (c) that the Humble Oil & Refining Company had notice of the injury within 30 days after the injury occurred; (d) that claim was made for compensation by appellee within six months after the injury; (e) that Hayes was totally disabled from work for 10 weeks; (f) that following the termination of total disability he suffered a partial disability to his eyes, and that such partial disability was permanent; (g) that appellee suffered a permanent 90 per cent. loss of the vision to his right eye and 20 per cent. permanent loss to his left eye; and (h) that he suffered a 50 per cent. permanent loss of vision to both of his eyes as a result of said injury.
The court entered judgment in favor of appellee for compensation at the rate of $20 per week for 9 weeks, beginning one week after the date of the injury, and compensation for 300 weeks at the rate of $10 per week, beginning at the termination or expiration of the total disability period, for 50 per cent. permanent partial disability or loss of vision to both eyes. The judgment provided that the weekly installments that had matured should be paid in a lump sum, and that the remaining installments should be paid as they mature. Motion for a new trial was overruled, and the cause is before us for review.
Appellant's first proposition complains that the court erred in permitting appellee, over its objection, to testify, in answer to questions from his counsel, that during the late war he was examined by an army doctor and that he passed that examination, the objection being that said evidence was irrelevant, immaterial, and not admissible to establish any issue in the suit. We think the evidence was erroneously admitted, but that the error was harmless. We take it that the testimony was offered for the purpose of showing that appellee's eyes were in good condition and his sight good prior to the accident. That this was true was shown by testimony of appellee not objected to. He testified that up to the time of the accident the condition of his eyes was good; that it was good up to the time he got hurt; that he did not wear glasses before the injury; never wore glasses before this injury; that he was 35 years old, and never was injured before March 16, 1925; that his eyes had been in an inflamed condition since he was injured; and that they were not in that condition before they were injured. Furthermore, there was no contention that appellee's eyes had suffered any prior injury; the contention being that there was a congenital weakness, not injury, causing inflammation. There was no issue of prior injury or inflammation from any cause.
Appellant's second, third, and fourth assignments assert that the court erred in permitting appellee's wife, over its objection, to testify that prior to the injury appellee's health and the condition of his eyes were good. The questions and answers as reflected by appellant's bill of exception are:
These questions and answers were objected to by appellant on the grounds that they were prejudicial, called for the conclusions of the witness, and were leading. The assignments are overruled. Appellant, in its brief, challenges the testimony for the reason that same was but the conclusion of the witness, who did not qualify to testify as an expert, and is therefore but the opinion of a nonexpert. The objections offered to the testimony were not based upon the fact that the witness was not an expert. Her testimony as to the condition of her husband's eyes and health before the accident was material and relevant. She having been intimately and constantly associated with her husband for years, and all the while observing him and knowing of his condition as to health and eyesight, could state her knowledge of same, and it would be the statement of facts, not conclusions.
If any of the questions complained of were leading, they were harmless. They elicited no information, other than a general statement of her husband's health and eyesight, which was proper.
Appellant's fifth and sixth propositions are overruled. They relate to hypothetical questions propounded to a doctor witness. We think the questions asked and the evidence adduced proper.
The seventh and eighth propositions do not show any error. We think sufficient proof was made that claim was made within six months for compensation.
If the ninth proposition shows error, it was harmless.
Appellant's tenth proposition complains that counsel for appellee was guilty of improper argument to the jury, and that same constituted reversible error. The argument complained of was:
The argument was objected to by appellant at the time, on the grounds that same was...
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