Royal Indemnity Co. v. Jones, 11675.

• Decision Date: 05 February 1947
• Docket Number: No. 11675.,11675.
• Citation: 201 S.W.2d 129
• Parties: ROYAL INDEMNITY CO. v. JONES.
• Court: Texas Court of Appeals

201 S.W.2d 129

ROYAL INDEMNITY CO. v. JONES.

No. 11675.

Court of Civil Appeals of Texas. San Antonio.

February 5, 1947.

Rehearing Denied March 12, 1947.

Second Rehearing Denied April 9, 1947.

Appeal from Fifty-seventh District Court, Bexar County; C. K. Quin, Judge.

Suit under the Workmen's Compensation Act by Royal Indemnity Company, insurance carrier, to set aside an award of the Industrial Accident Board in favor of William Howard Jones. From a judgment granting compensation, the insurance carrier appeals.

Judgment reformed and as reformed affirmed.

Moursund, Ball, Moursund & Bergstrom and Charles W. Barrow, all of San Antonio, for appellant.

G. Woodson Morris, of San Antonio, for appellee.

NORVELL, Justice.

This is a workmen's compensation case. Royal Indemnity Company, the insurance carrier, has appealed.

The jury found that William Howard Jones, the appellee, sustained an accidental injury on July 18, 1945, while in the course of employment with Handy-Andy Community Stores, Inc., and that such injury was the producing cause of a permanent total incapacity. The jury also found that Jones had, within thirty days after July 18, 1945, notified E. C. Becker, Vice President of the employer corporation, or William Vogt, Jones' foreman, of his injury. The judge rendered upon the jury's findings awarded Jones compensation at the rate of $20 per week for two periods of time, that is, from December 7, 1945 (seven days after the date of the commencement of Jones' total disability as found by the jury), to July 12, 1946, the date of judgment, a total of $548.64, with interest, and for a further period of 354 5/6 weeks from and after July 12, 1946.

Appellee testified that on July 18, 1945, he and other employees of Handy-Andy Community Stores, Inc., were installing overhead ammonia coils in a deep freeze room maintained by the Handy-Andy Company. He stated that while lifting or pushing upon one of these heavy coils, "I felt a burning sort of a pain hit me on my side and the back of my neck and travel down my back and inside of my leg. * * * It caused me to be sick at my stomach. A bitter saliva developed in my mouth and I spit it out." He further said that when he examined his side he noticed a bulge, that he pushed it in, but it came out again. Appellee's medical evidence was to the effect that he had developed or was developing a right inguinal hernia and had sustained a rupture of an intervertebral disk, and that his disability was permanently total.

The evidence shows that appellee continued to work for the Handy-Andy Company until the middle of October, 1945, and that on November 9th he went to work for another company and continued in said employment until November 30th, the date upon which he became incapacitated, according to the jury's finding. On November 7th appellee was examined by a medical examiner, who found no physical defect except that appellee had weak sides, by reason of previous hernia injuries. Appellee was passed as fit for the employment which he undertook two days later. Appellee testified that since July 18, 1945, he had suffered no injuries of any kind, thus supporting the inference that the injury of that date was the producing cause of the physical condition described by his medical witnesses. From the record we can not say that the jury's finding, in accordance with the inference mentioned, was not supported by sufficient evidence, or was against the overwhelming preponderance of the evidence. 3 Tex. Jur. 1093-1100.

Appellee pleaded that he had received a hernia on his right side and injuries to his neck, back and legs, and that all of said injuries were permanent and lasting. Appellant here takes the position that the back injury is a "hernia" within the meaning of Article 8306, § 12b, Vernon's Ann.Civ. Stats., and compensable as a specific injury rather than a general injury. It is appellant's further contention that there was no evidence that the "hernia" appeared suddenly and immediately after the injury (Art. 8306, § 12b, par. 2) and consequently the trial court should have instructed the jury to find for appellant.

The medical evidence indicates that Jones suffered a rupture of an intervertebral disk. Intervertebral substance is defined in Webster's New International Dictionary as, "the tissue uniting the bodies of contiguous vertebræ. In man it forms disks of varying thickness, closely adherent to the surface of the bones, and composed of concentric laminæ of fibrous tissue and fibrocartilage with a soft pulpy substance in the center derived from the notochord of the embryo. The disks serve as cushions protecting against shocks and allowing slight movements of the bones."

The medical testimony is in accord with the above definition or description, and to the effect that Jones suffered a rupture of the disk between the fifth lumbar vertebra and the first sacral vertebra. As to the effect of the injury, Jones' medical expert testified that, "when you part the membrane that keeps the disk material between the vertebræ, the material of the disks shoots through the break, * * * when an intervertebral disk collapses, it can only collapse in one direction, the material has to go somewhere, it can't go laterally, because the ligaments on each side are too strong * * * it doesn't break forward for the same reason, those ligaments are intensely tough, so it can only bulge backwards into the area where the spinal cord goes down." In the expert's opinion, pressure from the disk material was being exerted against the sciatic nerve at its roots in the spinal cord, causing severe pain and suffering and rendering Jones totally disabled.

In our opinion, the rupture of an intervertebral disk, although sometimes referred to as a "hernia nuculeus pulposus" is not a "hernia" within the meaning of that term as used in Article 8306, § 12b. In Lewis v. American Surety Co., 143 Tex. 286, 184 S.W.2d 137, 139, the broad definition of hernia is set out, but the Court said: "While the definition of hernia includes any and all protrusions of an internal organ from its natural location, it is evident that that term was used by the Legislature in its popular sense in the compensation statutes. Should an employee, for example, suffer an injury in the course of his employment producing a hernia of the brain, it is not believed that his right, or that of his beneficiaries, to recover compensation therefor should be limited and controlled by the specific provisions of the hernia statute. They cannot be made to apply practically to such an injury."

Further, it seems inescapable that the type of hernia contemplated by said Article 8306, § 12b, is one for which generally the standard and accepted remedial procedure is the radical operation. The medical testimony in this case indicates clearly that a surgical operation is not the accepted or standard procedure for repairing a rupture of an intervertebral disk, and that an operation is resorted to only in extreme cases, where the patient is "having so much pain that it is better to take a chance and operate."

We hold that the pleadings and evidence are sufficient to support the theory of recovery submitted by the trial court to the jury, and that the motions for an instructed verdict and for judgment non obstante veredicto were properly overruled.

We are also of the opinion that the trial court properly refused appellant's requested special instruction, to the effect that in considering the question of appellee's general incapacity the jury should not "take into consideration any...