Sanders v. St. Paul Fire & Marine Ins. Co.
Decision Date | 14 May 1968 |
Docket Number | No. 7877,7877 |
Citation | 429 S.W.2d 516 |
Parties | Joe M. SANDERS, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellee. . Texarkana |
Court | Texas Court of Appeals |
R. W. Fairchild, Vernis Fulmer, Ivy C. Fuselier, Nacogdoches, for appellant.
Richard Grainger, Mike Hatchell, Ramey, Brelsford, Flock, Devereaux & Hutchins, Tyler, for appellee.
A workmen's compensation case. Appellant Sanders sued appellee insurance company for compensation for permanent total incapacity resulting from an injury allegedly sustained on or about September 8, 1965, in the course of his employment by Nutone, Inc., Woodcarv Division. Trial to a jury resulted in a verdict in which the jury answered 'We do Not' to an issue inquiring if they found from a preponderance of the evidence that Joe M. Sanders sustained an injury on or about the 8th day of September, 1965, and 'due to solely to other causes' to an issue inquiring if they found from a preponderance of the evidence that the incapacity, if any, of Joe M. Sanders is not now and will not in the future be solely caused by congenital defects, scoliosis, or arthritis, or any combination thereof, existing independent of and having no connection with the alleged injury made the basis of this suit. Judgment was rendered that plaintiff-appellant Sanders take nothing and he has appealed.
Appellant presents 8 points on appeal, all of which complain of jury argument. Appellant's points 1 to 3, inclusive, read as follows:
'First Point
'The error of the trial court in failing and refusing to sustain Appellant's objection to the argument of counsel for Appellee to the jury commenting upon the failure of counsel for plaintiff to put on the witness stand Wayne Allen and Leslie Howard, persons not peculiarly available to Appellant as witnesses.
'Second Point
'The improper and prejudicial conduct of counsel for Appellee in repeatedly commenting, in his argument to the jury, upon the failure of Appellant to put on the witness stand Wayne Allen and Leslie Howard, persons not shown to be peculiarly available to Appellant as witnesses.
'Third Point
'The grossly improper and highly prejudicial conduct of counsel for Appellee during his argument to the jury in telling the jury that he had statements from Wayne Allen and Leslie Howard that Joe Sanders had not told them of his injury on the day he was hurt and in stating to the jury, after objection had been sustained to the statements he had made, 'here they are, if you want to look at them, the statements from the other witnesses that he didn't put on'.'
Before the taking of testimony began, the rule was invoked. Witnesses present in the courtroom and sworn at the instance of appellant were identified as Dorsey Page, Wayne Allen, Benton Daniel, Joe Sanders and Annie B. Sanders.
Appellant Joe Sanders testified to the effect that he got hurt in the course of his employment on September 8, 1965, while lifting a heavy cabinet when he was alone. He testified further to the effect that he continued to work in pain until September 27, 1965, when he went to Dr. Morris, who put him in a hospital in Henderson for twelve days and gave him various treatments for his upper and lower back. After seeing Dr. Morris once or twice more he quit Dr. Morris and went to Dr. Lynch, in Tyler, who treated him regularly since he got out of the Henderson hospital.
He further testified to the effect that no one was around him when he sustained the injury to his back on September 8, 1965, but that he told his fellow employees Dorsey Page, Wayne Allen, and Leslie Howard on the same day that it happened of his injury. Wayne Allen boxed cabinets; Leslie Howard ran a saw, but he did not know what type of work Dorsey Page did. He testified to the effect that he did not tell his employer of his injury until after Dr. Morris put him in the hospital because he needed work and was hoping to get better so he could hold his job.
Appellant Sanders testified in detail as to his claimed injury, his disabilities to work, and the various treatments he received from Dr. Morris and that later he had been treated by Dr. Lynch for a long period and was still under his treatment at the time of the trial. Suffice it to say, the testimony of appellant Sanders, if given full credence by the jury, would have authorized a verdict in his favor for total and permanent incapacity, or at least a substantial recovery.
Annie Sanders, wife of appellant, as a lay witness, corroborated her husband in many respects. She testified that he came home on September 8, 1965, and told her about getting hurt that day on the job. She also corroborated him as to his being seriously disabled and related his various complaints of pain, his sleeplessness and restlessness at night from back pain, that he was stiff and could not stoop, that he had to take medicine four times per day and that she had bought a back brace for him for his pain, that her husband first went to see Dr. Morris on Sept. 13, 1965, five days after his injury, and that while her husband was in the hospital she told his boss, O. C. Allen, of his injury.
Dorsey Page, a fellow employee placed on the stand by appellant, testified that he worked in the stockroom of his employer and that Sanders' job was to take cabinets from the assembly line and store them in the stockroom, that he would see Sanders frequently every day in the area where Sanders worked, and that he remembered that Joe Sanders, in the early part of September, a few weeks before he quit work, complained to him that he had hurt his back lifting cabinets a few minutes before.
On cross-examination, Page testified that Sanders told him he hurt his back before he went to the hospital and again when he visited Sanders in the hospital.
Page identified and admitted signing a written statement on October 18, 1965, that the first he knew of Sanders hurting his back was when Sanders told him of it in the hospital, he further testified to the effect that he knew Sanders told him before he went to the hospital but could not remember just what day it was, and that one day while he was eating dinner with Sanders, and Sanders was taking medicine all the time, Sanders said, 'Dorsey, I hurt my back,' and that they just 'laughed it off'.
Dr. Lynch testified in detail with respect to his treatment of Sanders' alleged back injuries and his evaluation of same. In his opinion, Sanders was totally and permanently disabled. Suffice it to say, the testimony of Dr. Lynch, if given full credence, would have authorized a verdict for Sanders for total and permanent disability, or a substantial amount of disability.
Defendant-appellee placed three witnesses on the stand. The first witness, Ervin Daugherty, Administrator of Henderson Memorial Hospital, proved up the hospital records of Joe Sanders from Sept. 27 to Oct. 9, 1965, and also proved up the x-rays and x-rays reports in connection therewith. Appellee's second witness was Dr. James McClelland, a radiologist, who testified with reference to the x-rays made of Sanders' back when he was in the Henderson hospital and gave his interpretations and opinions with reference to what the x-rays indicated with reference to Joe Sanders' back. He found scoliosis and congenital defects with reference to Sanders' back and spine, and he further testified to the effect that he did not find in such x-rays any evidence of injury to Sanders. He further testified that he had examined subsequent x-rays of Sanders' back and he found no evidence of injury. Suffice it to say, the testimony of Dr. McClelland, if given full credence, would authorize the verdict of the jury in this case. Testimony of appellee's third and final witness, Dr. Milton Freiberg, of Tyler, Texas, was to the effect that he had examined Sanders on behalf of appellee insurance company and he too found no evidence of injury. Suffice it to say, the testimony of Dr. Freiberg, if given full credence, would authorize the verdict of the jury in this case.
On rebuttal appellant and his wife again gave evidence favorable to appellant's contentions. Also on rebuttal, a Henderson druggist, Mr. Bagley, testified to filling a prescription for Joe Sanders, authorized by Dr. Morris, on Sept. 13, 1965, and also testified as to later prescriptions filled.
Thus the factual background in this case shows a sharp conflict in the evidence as to whether plaintiff received any injuries as alleged and also whether plaintiff's disability, if any, was occasioned by injury or whether same, if any, was due solely to other causes as stated in the issue submitted to the jury.
On the issue as to whether plaintiff received the injury in question and was disabled therefrom as alleged, the credibility of plaintiff-appellant was of a vital nature since he allegedly sustained the injury while working alone. His further testimony that he told three fellow employees about his injury was also of vital importance to his case.
During the trial, and before arguments began, counsel for appellee referred to the failure of appellant to call the witnesses sworn at his request. These instances were as follows:
'Mr. Fulmer: That is all we have at the time, Your Honor, until another witness gets here at 1:30, or 1:00 rather.
'Mr. Grainger: You have got a couple of witnesses waiting outside.
'Mr. Fulmer: Your Honor, we object to that kind of stuff.
'The Court: That's right, don't * * *
'Mr. Grainger: I withdraw it, Your Honor.
'The Court: Don't do that.'
Again, immediately after Annie B. Sanders was excused, on appellant's rebuttal, the following occurred:
'Mr. Grainger: What about those * * * did you excuse those witnesses?
'Mr. Grainger: They were sworn as your witnesses.
'The C...
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