Smith v. Spence & Son Drilling Co., 6097

• Decision Date: 19 September 1956
• Docket Number: No. 6097,6097
• Parties: Sherman S. SMITH, Plaintiff-Appellee, v. SPENCE & SON DRILLING COMPANY, Employer, Travelers Insurance Company, Carrier, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 723

301 P.2d 723

61 N.M. 431

Sherman S. SMITH, Plaintiff-Appellee, v. SPENCE & SON DRILLING COMPANY, Employer Travelers Insurance Company, Carrier Defendants-Appellants.

No. 6097.

Supreme Court of New Mexico.

Sept. 19, 1956.

G. T. Hanners, Lovington, for appellants.

Lon P. Watkins, Carlsbad, Jack Underwood, Lovington, for appellee.

SADLER, Justice.

The defendants below being the employer and insurer in the trial of a claim for Workmen's Compensation prosecuted before the district court of Eddy County, complain before this court, as appellants, of a judgment rendered against them upon the verdicts of a jury returned into court at the conclusion of the trial.

The injury on account of which the claim is prosecuted took place on April 3, 1954. The plaintiff was 37 years of age at time of the accidental injury of which he complains. He was married and the father of two children. He had substituted for another man on two occasions and about a week before his accidental injury he was given steady employment by Spence & Son Drilling Co., hereinafter referred to as 'employer' or 'main defendant'. He drove a truck and served as a driller's helper.

On the day in question, the plaintiff injured his back while in the act of assisting another workman in lifting a heavy steel pan used as a reservoir in which water is run in circulating mud out of a hole. Asked how much the pan weighed, the plaintiff testified:

'* * * Q. About how much does that pan weigh? A. Well, the two of us couldn't pick it up off the ground, if you just reach down and get it. And he had a cable on the small end of it, letting it down on me, and I was walking back with it. And I bent over to set it on the ground, and my back started hurting.

'Q. Well, now, did you set it on the ground? A. No. I didn't get to do that. I dropped it. It was about 12 inches from the ground, and the pain hit me, and I had to drop it.

'Q. Can you describe to the Jury just what kind of pain it was, and where it was? A. Well, it was from my belt line down, and it burnt like fire when it happened. And the next morning I couldn't get out of bed.

'Q. Now, over what section of your body did it burn? A. Well, all from my belt on down to below part of my back bone.'

Following his injury the plaintiff remained on the job and worked the remainder of the afternoon, then drove his truck some 50 miles into Lovington. In the weeks and even months after his injury the plaintiff received treatment or examinations from several physicians, the first of whom was an osteopath and the remainder regular M. D. physicians engaged in the general practice. He was under the care of Dr. Charles Hargreaves of Lovington perhaps a longer time than any other. He happened to be plaintiff's own physician and a general practitioner at Lovington.

He was also examined, although not treated, by two orthopedic physicians and surgeons over the period following injury and prior to suit, namely, Dr. W. Compere Basom of El Paso, Texas, who holds periodic clinics in Hobbs, New Mexico and, also, by Dr. John S. Moore of Roswell, New Mexico. Dr. Basom examined the plaintiff on two occasions and Dr. Moore as many as three times. All took x-ray pictures of plaintiff's back.

The jury would have been warranted in finding from the evidence that the plaintiff as a direct and proximate result of the accident mentioned suffered from herniated disc. A herniated disc is described by one of the physicians as a rupture of the padding between the vertebrae. It was this same witness who gave it as his opinion that he suffered from a herniated disc. He also found some numbness in his right thigh. All told, plaintiff had been treated some 36 times by this same physician. It was he who as one of the physicians testified:

'It (a herniated disc) is the padding squeezed out, so that it puts pressure against some of the spinal nerves, causing pain.'

Dr. Basom, a witness for defendants, stated it was quite possible the plaintiff had a herniated disc but that he could not be sure without the Myelogram test, which plaintiff declined to undergo, it being in evidence there was some danger, though not great, incident thereto. This same witness, also, observed a narrowed intervertebral joint between the 2nd and 3rd lumbar vertebrae. This, he described as the degenerative process of the spine and he thought it had been there all the time. The testimony of Dr. Moore, a defense witness, was along the same line.

The plaintiff, himself, testified he had been unable following his injury to do heavy labor. He had endeavored to hold light jobs, but was compelled to abandon even them. He had worked for a time on a used car lot wiping dust off cars. He also took another job of ferrying cars from one point to another but was unable to sit up and drive cars the distance necessary to hold the job and was discharged by reason thereof. He had dropped from 156 pounds to 120 pounds in weight between the date of accident and time of trial.

In addition to testifying he was no longer able to do heavy manual labor, the plaintiff stated that following accident he had been unable to lace his shoes or to move about in bed, or to bend over. If he turned over on his stomach while in bed, he found himself unable to turn again onto his back without the aid of his wife. He was confirmed in much of this testimony by his wife, and his landlady, who owned an apartment occupied by plaintiff and his wife and children.

Each of the three physicians who appeared in the case, expressed opinions as experts on plaintiff's condition. Dr. Basom thought he had suffered 30 per cent bodily disability. Dr. Moore gave it as his opinion he had suffered 40 per cent bodily disability. Whereas, Dr. Hargreaves, who had actually treated the plaintiff over a period of several months, expressed the view in a report he had signed as of July 3, 1955, that 33 1/3 per cent would be a fair estimate of plaintiff's then bodily disability. Explaining this statement on cross-examination, he stated:

'* * * A. I meant, as far as being able to do light work, and all, he still is capable, I think, of being up and around and doing a lot of odds and ends, and earning a small salary, of course; but as far as going out and hiring out for a job, he is likely to be 100 per cent disabled, because he can't do the work.'

Notwithstanding Dr. Basom's rating of 30 per cent bodily disability and he had seen him only twice, he had this to say in the course of his examination:

'Q. Assume, sir, a man 37 years old, who went through the eighth grade in school and no further, and who has worked throughout his life, after he got out of school, driving log trucks, working in a saw mill, working at a filling station changing tires, and lastly, working as a driller's helper--which necessitates hard manual labor; who has suffered an injury such as a herniated disk or a lumbosacral sprain: is he able to do 70 per cent of the work he was able to do before he suffered such an injury? A. On the patient who had a very definite herniated disk, and without treatment and without improvement, then I would say that he would be 100 per cent disabled for heavy work. Nearly all the cases, I've seen, however, can do quite a bit of work; and the disability is rated primarily on pain, and that makes the actual rating very difficult.

'Q. Then you just actually can't arrive at a correct rating; is that true? A. On the basis of what I have on Mr. Smith--the medical evidence--it wouldn't go any higher than 30 per cent, at all.

'Q. Now, do you believe, Doctor, from your treatment and examination of Mr. Smith, that he is able to do hard manual labor? A. I don't think he can do heavy manual labor, with that kind of spine, at all.'

It should be mentioned that the plaintiff had a very limited education, having attended school only through the eighth grade. Prior to the date of his injury, the only work in which he had engaged and in which he was capable of rendering qualified service was heavy manual labor. After finishing the eighth grade in school, he worked for a railroad company in Missouri for about three years, carrying cross-ties and loading them on railroad cars. He then moved to Arkansas and, for a time, drove a log truck and worked in a saw mill. This type of job was followed by about ten (10) years spent in a service station as a grease monkey and tire boy.

So much for the facts. At conclusion of the trial, the cause was submitted to the jury on the general issue and on special interrogatories. The general verdict was for the plaintiff. The jury then considered the special interrogatories, to which it supplied answers as indicated below; to-wit:

'1. Do you find by a preponderance of the evidence that claimant sustained disability resulting from accidental injury while employed by Spence and Son Drilling Co.?

Answer Yes or No: Yes

'2. If you have answered the above question in the affirmative, what percentage of disability, if any, was claimant suffering from this accident on May 15, 1955?

Answer: 100%

'3. If you have answered Question No. 1 above in the affirmative, then do you find claimant is presently disabled as the result of injury sustained by accident while employed by Spence and Son Drilling Co.?

Answer Yes or No: Yes

'4. If you have answered Question No. 3 'Yes,' then state the percentage of disability claimant is now suffering.

Answer: 100%'

Judgment was entered in conformity with the general and special verdicts for compensation due plaintiff and unpaid as for total permanent disability to December 3, 1955 and at rate of $30 per week commencing December 4, 1955, and continuing during the period of plaintiff's total and permanent disability but 'not to exceed the period of 550 weeks from April 3, 1954, (date of injury), subject to all of the terms and provisions under the Workmen's Compensation Act of the State of New Mexico.' An award to plaintiff of attorneys' fees in the sum of $1,500 was also allowed...