Robertson v. National Surety Corp., 14528.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: HUTCHESON, , and HOLMES and RUSSELL, Circuit
• Citation: Robertson v. National Surety Corp., 208 F.2d 642 (5th Cir. 1954)
• Decision Date: 25 January 1954
• Docket Number: No. 14528.,14528.
• Parties: ROBERTSON v. NATIONAL SURETY CORP.

208 F.2d 642 (1953)

ROBERTSON v. NATIONAL SURETY CORP.

No. 14528.

United States Court of Appeals Fifth Circuit.

December 22, 1953.

Rehearing Denied January 25, 1954.

Otto B. Mullinax, Mullinax & Wells, Dallas, Tex., for appellant.

Lucian Touchstone, Richard Bernays, and Touchstone & Bernays, Dallas, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.

HUTCHESON, Chief Judge.

Filed under the Texas Workmen's Compensation Act to set aside and hold for naught an award of the Industrial Accident Board on his claim for compensation, the suit claimed and sought recovery for total and permanent incapacity. Further, "in the event and only in the event that the matter of hospital and doctor's bills and operation" in the aggregate amount of $1128.65 incurred by him "become relevant and material to his recovery of workmen's compensation insurance", plaintiff alleged that defendant became and was liable to him for them and sought recovery therefor.

Defendant, denying that plaintiff received a compensable injury claimed by him, further alleged, (1) that if he received any injury it was partial and temporary, and (2) that if he has any physical incapacity to labor, same is due to a previous injury or to a disease.

On the issues thus joined, the cause was tried to a jury, and the district judge submitting the issues of total temporary, partial temporary, and partial permanent, incapacity, and refusing to submit that of total permanent incapacity, there was a verdict finding for plaintiff "total temporary 30 weeks and partial permanent 15 percent" and a judgment for the amount due under the finding.

His motion to set the judgment aside and for new trial denied, plaintiff, appealing from the judgment, is here insisting upon its reversal. Presented under eleven numbered points, the grounds of error relied on are in substance four.

The first and most argued ground is that, under the evidence, plaintiff was entitled to a submission of the issue of total permanent incapacity, notwithstanding the admitted fact that as a result of an operation voluntarily undergone by him, he was not and did not claim to be now so incapacitated.

The second is that the court erred in excluding evidence as to, and in declining to submit and permit argument to the jury on, the cost of medical and hospital expenses voluntarily incurred by plaintiff.

The third is that, in the course of the trial, the court erred, to the substantial prejudice of appellant, (a) in limiting plaintiff's examination of his witness, Dr. Horne, in regard to his professional qualifications and as to factors causing peptic ulcer; (b) in limiting his examination of his witness, Heslep; and (c) in admonishing plaintiff's counsel to be fair in the presentation of his case and the interrogation of his witnesses.

The fourth is that he erred in admitting evidence as to the terms of a compromise settlement agreement between plaintiff and Texas Employers Association of a compensation claim for prior injuries arrived at and executed prior to the injury for which claim is made in this suit.

Appellee, in its reply to appellant's first ground of error, points out that as shown by the requested and refused charge,¹ it presents the wholly untenable and inadmissible contention that though, as a result of his voluntarily submitting to an operation, plaintiff is admittedly not now wholly and permanently disabled, the jury may disregard the effects of the operation and find for him for total and permanent incapacity, if they believe that but for the operation he would be so incapacitated.

So pointing, they insist that this represents a flight from fact to fancy, from reality to make believe, in short the substitution of a kind of "as if" reasoning by which what is, may be found not to be, and what is not, may be found to be, for the solid kind of reasoning from fact to conclusion required in the trial of cases.

As to the second ground, the claimed right of plaintiff to prove the amount of, and to recover for, hospital and medical bills, appellee points out: that suits for compensation are purely statutory; that medical and hospital expenses are part of the statutory scheme;² that those claimed here were not incurred within thirty days of the date of the injury; and that there is neither showing nor claim that any claim for such medical attention and services was made to the board as required by the statutes.

So pointing, it insists, upon the authority...