Seay v. Lea County Sand & Gravel Co., 5983

• Decision Date: 04 January 1956
• Docket Number: No. 5983,5983
• Citation: 1956 NMSC 4,60 N.M. 399,292 P.2d 93
• Parties: Mark O. SEAY, Plaintiff-Appellee, v. LEA COUNTY SAND AND GRAVEL COMPANY and Houston Fire and Casualty Insurance Company, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 93

292 P.2d 93

60 N.M. 399

Mark O. SEAY, Plaintiff-Appellee, v. LEA COUNTY SAND AND GRAVEL COMPANY and Houston Fire and Casualty Insurance Company,

Defendants-Appellants.

No. 5983.

Supreme Court of New Mexico.

Jan. 4, 1956.

Neal & Girand, Hobbs, for appellants.

Easley, Quinn & Stout, Hobbs, for appellee.

McGHEE, Justice.

The claimant (appellee) received an award following a jury trial for one hundred percent disability for a period of twenty-six weeks and for fifty percent disability thereafter because of a back injury suffered while working for the defendant employer. The employer and insurer appeal.

The first claim of error which the appellants urge is the trial court erred in refusing to give their requested instruction No. 13, which reads:

'Members of the Jury, you are instructed that under the Workmen's Compensation Act of the State of New Mexico you would not be entitled to return a verdict in favor of the plaintiff awarding him disability unless the extent of his disability, if any is shown, and its relation to an accidental injury sustained in the course of his employment is established to your satisfaction by a preponderance of the competent medical evidence that has been introduced in the case.'

The extent of disability was established by the expert testimony of orthopedic surgeons and the testimony of claimant himself wherein he detailed his inability to work at his trade of a welder or any other work except such as did not require physical exertion, and also his inability to procure employment in Lea County, where he resided. Some two weeks before the trial he had procured employment as a telephone operator at forty percent of the rate of pay he had received prior to the injury for which compensation was sought.

The appellants make a strong plea for us, in effect, to overrule our holding in Elsea v. Broome Furniture Co., 1943, 47 N.M. 356, 372, 143 P.2d 572, 582, where we said in answer to a like contention:

'* * * After all, medical testimony, as other expert evidence, is intended to aid, but not to conclude, a court or jury.

'The jury is entitled to rely upon rational inferences deductible from the evidence, whether arising from expert testimony or otherwise.'

This holding was followed in Lemon v. Morrison-Knudsen Co., 1954, 58 N.M. 830, 277 P.2d 542 (a back injury case) and in Gilbert v. E. B. Law and Son, Inc., 1955, 60 N.M. 101, 287 P.2d 992. We believe the rule of these cases on the subject is sound and we decline to overrule them. Neither do we find fault with the findings in view of the testimony of Dr. Breck, an orthopedic surgeon who according to the testimony has a nation-wide reputation in his specialty, that the claimant was fifty percent disabled for doing heavy work. It is true Dr. Breck testified the claimant was able to handle a welding torch and do welding if he did not have to lift heavy objects or get into awkward positions, and in this he was corroborated by the claimant, but there are no such jobs available, according to the record.

An orthopedic surgeon from Midland, Texas, who for the United States Veterans Administration performed surgery on the back of claimant because of a floating disc and made a fusion of two of the vertebra, stated the claimant had only a ten percent disability and was able to do welding or other heavy work and that it would be beneficial to claimant if he did such work; but it was within the province of the jury to accept or reject his testimony.

The claimant had suffered previous back injuries while serving in the armed forces during World War II, and in private employment. The next claim of error is that the trial court erred in refusing to give appellants' requested instruction No. 14, which reads:

'In your consideration of whether or not plaintiff is suffering from a disability caused by accident arising out of and in the course of his employment and in your consideration of the extent of such disability, if any is shown, the burden is upon the plaintiff to show by a preponderance of the evidence that such disability, if any, is the direct and proximate result of an accidental injury sustained in the course of his employment or is the result of the material aggravation of a pre-existing infirmity as the result of an accidental injury sustained in the course of his employment. You are, therefore, instructed that in considering the award to be made to the plaintiff, if any, you should disregard any pre-existing infirmity of plaintiff, if any, except to the extent that you may find such pre-existing infirmity has been aggravated and brought to light by an accidental injury sustained in the course of his employment. If you find that there was a pre-existing infirmity and that by reason of an accidental injury sustained in the course of his employment the pre-existing infirmity was materially aggravated and brought to light by an accidental injury sustained in the course of his employment, you may award plaintiff that portion of his disability, if any, which is caused by such material aggravation of the pre-existing infirmity, if any is shown, but may not award in excess of the percentage due to such aggravation of any pre-existing infirmity you may find to exist.'

In lieu of the foregoing instruction the court gave...