Southern Surety Co. v. Lacoste
| Decision Date | 16 May 1928 |
| Docket Number | (No. 8014.) |
| Parties | SOUTHERN SURETY CO. v. LACOSTE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
Action by the Southern Surety Company against James F. Lacoste to review an award under the Workmen's Compensation Act, in which defendant filed a cross-action. From a judgment for defendant, plaintiff appeals. Affirmed.
Douglas, Carter & Black, of San Antonio, for appellant.
King & York, of Austin, and C. D. Johns, of Kingsville, for appellee.
The appellee, James F. Lacoste, originally filed a claim for compensation under the Workmen's Compensation law, before the Industrial Accident Board, for compensation for the injury received by appellee while in the employ of R. W. Briggs & Co.
The claim was appealed to the courts, and the appellant was cast in the action, and appellee, by the verdict of the jury, was declared to be totally and permanently incapacitated and he was given judgment for his compensation for 401 weeks, reduced to a lump sum.
Appellee pleaded fully his total and permanent incapacity. Appellant, Southern Surety Company, answered by general denial and special answer, admitting that Lacoste was employed as alleged, that he received certain injuries in the course of his employment, and that the Southern Surety Company carried the risk, but denied that Lacoste was "totally and permanently injured" as alleged, but his injury was a specific one to his right lower arm and wrist only. The appellant admitted that Lacoste was permanently incapacitated for 11 weeks and it paid said 11 weeks' compensation; that Lacoste had entirely recovered from all injuries, save and except the partial injury to his lower wrist and hand, to which extent it admitted liability. It also alleged that it had paid all necessary doctor bills and hospital bills, amounting to several hundred dollars. Appellant specifically denied that Lacoste was permanently incapacitated, as alleged by him, but he was only entitled to recover for a specific injury, for the loss of the use of his hand, 60 per cent. of the average weekly wage during 150 weeks, less the amount it had theretofore paid to him.
This case was submitted to the jury upon the following issues, which, with the answers thereto, are as follows:
By comparing this charge with the case of Employers' Liability Assur. Corporation, Limited, v. Williams et al. (Tex. Civ. App.) 293 S. W. 210, where the facts are very similar, the charge would seem to present proper questions to the jury for their finding, and is therefore a proper charge.
Appellee was employed by R. W. Briggs & Co., Inc., which carried a policy of insurance with appellant under the Workmen's Compensation Law (Rev. St. 1925, arts. 8306-8309), and on the 18th day of February, 1927, appellee sustained an injury by being dragged into a concrete mixer which he was operating for his employer. The injury which he sustained resulted in his total permanent incapacity to do or perform labor of any kind whatsoever, either in the line of his duties in the aforesaid employment or otherwise. His arm was so broken and damaged as to leave him afflicted with what is known as "wrist drop" so that it is entirely useless and cannot be used for any practical purpose. His nervous system was destroyed; he suffers continually from headaches and extreme nervousness, which injuries have deterred him from earning a livelihood at manual labor, and he was not qualified by education, training, or experience to earn money in any other vocation or calling, except that which had to do with manual labor.
Appellee testified that on the 18th day of February, 1927, he was operating a concrete mixer, and that he had been operating concrete mixers on and off all of his life ever since he had been out of school; that it was necessary to empty the concrete mixer every minute and a half when one was engaged in operating the mixer; that it was necessary to pull a big long lever down with the right hand, to empty it, using the left hand for a brace against the frame work, as it is very heavy, weighing 2,200 pounds; that the operator had to stand on his feet, and had to use both hands to pull the scoop up and let the cement and the gravel come down; that while so engaged he was accidentally drawn into this concrete mixer head first, inside of the machine; that it broke his arm, severed the main leader that operates his hand, and all the bones were completely crushed, receiving a wound in...
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