Pacific Indemnity Co. v. Arline
Decision Date | 22 April 1948 |
Docket Number | No. 4506.,4506. |
Citation | 213 S.W.2d 691 |
Parties | PACIFIC INDEMNITY CO. v. ARLINE. |
Court | Texas 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.
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 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.
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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