Pacific Indemnity Co. v. Arline

Decision Date22 April 1948
Docket NumberNo. 4506.,4506.
Citation213 S.W.2d 691
PartiesPACIFIC INDEMNITY CO. v. ARLINE.
CourtTexas Court of Appeals

Appeal from District Court, Orange County; H. T. Hustmyre, Judge.

Suit under the Workmen's Compensation Act by Ruby Arline to set aside an award of the Industrial Accident Board in favor of Pacific Indemnity Company. From a judgment granting relief, the defendant appeals.

Affirmed.

Strong, Moore & Nelson, of Beaumont, for appellant.

Fauer & Barnes, of Jasper, for appellee.

WALKER, Justice.

This is a workmen's compensation case. The employee is Ruby Arline. The insurer is Pacific Indemnity Company. The employer is Consolidated Steel Corporation.

Employee brought the action as an appeal from an award of the Industrial Accident Board. He alleged that on April 16, 1946, while attempting, during the course of his employment, to lift and empty a heavy steel barrel, he severely strained his side and back; and was then and there totally incapacitated by reason of his injury to work and earn money; and further, that this incapacity, so caused, had continued to exist since the injury occurred, and would exist for a period of 145 weeks from the date of said injury. He also alleged an impairment of vision in his left eye, accompanied by headaches, but he abandoned these allegations on trial, admitting that he sustained no injury to his eye while he was employed by the aforesaid employer. He prayed recovery of compensation benefits under the Workmen's Compensation law for the aforesaid period of 145 weeks.

Insurer filed a general denial and three special pleas by way of defense: (1) That any disability employee had on April 16, 1946, and since was "solely the result of disease, physical defects, or other causes, not in any way connected" with any accidental injury alleged by employee; or (2), in the alternative, that if employee sustained an injury on April 16, 1946, resulting in compensable disability this disability terminated not later than 12 weeks after said date, and any subsequent disability was solely the result of other, non-compensable disease, physical defects or other causes; or (3), still further in the alternative, that any disability employee may have had after April 16, 1946, was only partially caused by accidental injury and, to the extent thus caused, was temporary, and that the balance of employee's disability was the sole result of other, non-compensable disease, defects or causes.

The action was tried to a jury, and on their verdict, the trial court rendered judgment in employee's behalf, as prayed for by him. Insurer has appealed. We make the following additional statement from the record as a basis for our judgment:

The trial court submitted the issues of injury and incapacity to the jury by the following definitions and special issues:

"You are instructed that wherever the term `injury' or `personal injury' is used in this charge, same shall be construed to mean damage or harm to the physical structures of the body and such diseases or infection as naturally result therefrom.

* * * * * *

"The term `injury sustained in the course of employment' as used in this charge, shall not include: 1. An injury caused by the act of God * * *. 2. An injury caused by an act of a third person intended to injure the employee because of reasons personal to him * * *. 3. An injury received while in a state of intoxication; 4. An injury caused by the employee's willful intention and attempt to injure himself, or * * * some other person.

"But said quoted phrase shall include all other injuries of every kind and character having to do with and originating in the work, business, trade, or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon employer's premises or elsewhere.

* * * * * *

"You are instructed that as a matter of law in this case the plaintiff did not receive any injury to his eye on April 16th, 1946, and further that the plaintiff sustained no disability in his eye that was in any way caused by an injury received in the course of his employment for Consolidated Steel Corporation.

You are instructed that the phrase `total incapacity' as used in the Court's charge does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as totally incapacitated.

"By `partial incapacity' is meant such incapacity as prevents one from performing some of the duties of an ordinary workman — in other words, any disability less than 100%.

"By the term `accidental injury' as used in this charge is meant one of a calamitous nature, happening by chance, or unexpectedly, and taking place not according to the usual course of things.

* * * * * *

"(Issue 1): Do you find from a preponderance of the evidence that Ruby Arline sustained an injury on or about April 16, 1946? Answer: Yes.

"(Issue 2): Do you find — that said injury, if any, was an accidental injury? Answer: Yes.

"(Issue 3): Do you find — that the injury, if any — was sustained by Ruby Arline because of emptying a garbage barrel into a truck? Answer: Yes.

"(Issue 4): Do you find — that said injury, if any — sustained by Ruby Arline, was an injury sustained in the course of his employment for Consolidated Steel Corporation? Answer: Yes.

"(Issue 5): Do you find — that said injury, if any — sustained by Ruby Arline, resulted in total incapacity? Answer: Yes.

"(Issue 6): — when did that total incapacity, if any — begin? Answer: April 16, 1946.

"(Issue 7): — how many weeks of such total incapacity, if any, do you find was sustained by Ruby Arline, from and after the beginning date —? Answer: Yes. 145 weeks.

"(Issue 8): Do you find — that said injury, if any, sustained by Ruby Arline, resulted in any partial incapacity to work? Answer: No. Totally disabled.

"(Issue 12): Do you find — that Ruby Arline worked in the same or similar employment, in the same or neighboring place, working at the time of the injury in question, as much as, or close to, or nearly three hundred days of the year just before April 16, 1946? Answer: Yes.

"(Issue 14): Do you find — that Ruby Arline's incapacity, if any —, is not due solely to disease? Answer: It is not due solely to disease.

"(Issue 15): Do you find — that the incapacity of the plaintiff, if any — is not due solely to physical defects or other causes disconnected with the injury, if any, alleged to have occurred on April 16, 1946, if any? Answer: It is not due solely to physical defects or other causes disconnected with said injury alleged to have occurred on April 16, 1946."

The jury's findings under these issues were based upon the following proof:

(a) Employee is a negro man. On April 16, 1946, he was (as he had been for over a year before) a member of a four man crew whose duty it was to go about employer's yard at Orange, Texas, with a truck, and to collect and carry away in this truck the daily accumulation of refuse which was an incident of employer's shipbuilding operations. This refuse was placed in barrels by other persons, and employee and his crew were required to empty these barrels into their truck and subsequently, to unload this truck at a certain place. The barrels referred to were made of steel and had a capacity of 50 or 55 gallons. The waste which was placed in these barrels consisted, in part, of steel fragments, and the barrels were usually full of waste and were very heavy. Shortly before noon on this day, April 16th, employee and his crew were engaged in collecting the waste and refuse from these barrels, and two members of the crew, standing on the ground, lifted one of these barrels and with some assistance from employee and the fourth man, Booker Reagan, who were standing in the truck, placed this barrel on the truck bed where employee and Reagan could empty it. Curtis Wilson, one of the men standing on the ground, thought that this barrel weighed 155 or 200 pounds. Employee stooped to lift the barrel in order to empty it, and while making the effort required to do this, he suddenly experienced a severe pain in his right side and back which caused him to drop the barrel. He said: "It hurt me in my side and back and I dropped down and dropped the barrel."

Employee was immediately and totally incapacitated by reason of this pain (evidencing a severe muscular strain, according to his theory of the facts) to perform physical labor. His co-employees conveyed him in the truck to a place referred to as the "nail shed," and there is evidence that he required assistance to leave the truck. The pain continued, unabated in severity, and shortly after employee arrived at the "nail shed," apparently just after the noon meal, in which employee did not participate, employee's crew carried him in their arms to a First Aid station on employer's yard, and from that place he was conveyed on a stretcher, in an ambulance, to a hospital in Orange, where he was placed in the emergency room and came under the treatment of Dr. L. O. Thompson, apparently very soon after arriving. There was evidence that men at the First Aid Station carried employee in their arms to the ambulance. There is also evidence that employee suffered great pain in the lower part of his abdomen and back during all this period.

(b) Employee remained about three days in the hospital under Dr. Thompson's care, leaving on the 18th (according to Dr. Thompson; employee said he stayed five days) and returning to his home. He reported to employer for work on April 29th or 30th, but soon discovered that he could not perform his duties because, he said, of a recurrence of the pain he had had on April 16th, and he was on that day recommitted to the hospital for further treatment by Dr. Thompson. He...

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