Southern Underwriters v. Grimes

• Decision Date: 11 December 1940
• Docket Number: No. 10775.,10775.
• Citation: 146 S.W.2d 1058
• Parties: SOUTHERN UNDERWRITERS v. GRIMES.
• Court: Texas Court of Appeals

146 S.W.2d 1058

SOUTHERN UNDERWRITERS v. GRIMES.

No. 10775.

Court of Civil Appeals of Texas. San Antonio.

December 11, 1940.

Rehearing Denied January 29, 1941.

Appeal from District Court, Refugio County; R. D. Wright, Judge.

Suit under the Workmen's Compensation Act by Thomas Charles Grimes, employee, against the Southern Underwriters, insurance carrier, to set aside an award of the Industrial Accident Board. To review an adverse judgment, the insurance carrier brings error.

Affirmed.

Will R. Saunders and Henry D. Akin, both of Dallas, for plaintiff in error.

Dean B. Kirkham and David Coover, both of Corpus Christi, for defendant in error.

SMITH, Chief Justice.

In an appeal by Southern Underwriters, the insurance carrier, from an award of compensation to Thomas Charles Grimes, the employee, the latter recovered a lump-sum judgment as for permanent total disability and the insurance company has prosecuted writ of error.

We have been favored with 369 pages of typewritten briefs in the case. Of course, we cannot be expected to be even proportionately verbose in discussing the few simple questions involved. The employee, Grimes, will be referred to as plaintiff and the insurance company as defendant.

It is first contended by defendant that the evidence was overwhelming that plaintiff was not toally and permanently disabled by the injuries he sustained within the contemplation of the compensation act, Vernon's Ann.Civ.St.Art. 8306 et seq. This contention is made under defendant's propositions 1 and 2 which must be overruled. We do not deem it necessary or profitable to set out the substance of the long drawn out evidence upon the issue of disability. It appears that plaintiff returned to work for the employer after lying in for sixteen weeks following the accident, and continued work in his old job or interchanging with other and related and less onerous jobs until the time of the trial. It is undisputed that plaintiff received very serious injuries in the accident, resulting, primarily, in a fractured and shattered jaw, concussion of the brain, the immediate loss of some of his teeth and ultimate loss of all of them. There was evidence tending to show that following those injuries, and because of them, plaintiff frequently or continuously suffers from extreme dizziness, violent headaches, emaciation, weakness, violent nausea, indigestion, nervousness; injured spinal cord and nerve centers, insomnia and inability to rest; loss of use of right arm and side; impaired eyesight, blind spells; greatly impaired mental processes and reflexes and senses of balance and equilibrium; loss of 85% of hearing in one ear and 100% in the other. We have taken this catalog of reactions from plaintiff's brief. The evidence was such as to justify jury findings to support most, if not all of them, or at least a sufficient number of them to sustain the ultimate finding of total permanent disability. Defendant points out the fact that four months after the injury plaintiff had returned to work and remained in that or similar but lighter work, and contends that that fact is so inconsistent with permanent total disability that the finding of the latter fact must be set aside, notwithstanding the evidence supports the subsidiary finding that plaintiff resumed and continued work only because of extreme economic necessity, and in spite of extreme pain and discomfort accompanying his efforts. The law seems to be that the fact that an injured employee resumes work after injury, but only under the whip of necessity, does not necessarily preclude a finding of total permanent disability; the latter issue remains, nevertheless, one of fact to be passed upon by the jury. 45 Tex. Jur. p. 588, § 161; Davies v. Texas Employers' Ins. Ass'n, Tex.Com.App., 29 S.W.2d 987; Texas Indemnity Ins. Co. v. Gannon, Tex.Civ.App., 38 S.W.2d 181; Texas Employers' Ins. Ass'n v. Teel, Tex. Civ.App., 40 S.W.2d 201; Traders & Gen. Ins. Co. v. Daniel, Tex.Civ.App., 131 S.W. 2d 276; Maryland Cas. Co. v. Dicken, Tex. Civ.App., 80 S.W.2d 800; Aetna Life Ins. Co. v. Bulgier, Tex.Civ.App., 19 S.W.2d 821. Therefore, under this rule the jury finding upon the ultimate issue, approved by the trial judge, is binding upon this Court.

In its third proposition defendant complains of the refusal of the trial court to submit to the jury defendant's special requested issue inquiring if "plaintiff's disability to work and labor had not ceased on April 12, 1938," when he first resumed his employment after his injury. In their answers to submitted issues the jury found that plaintiff's disability was not partial but total, and began on December 20, 1937 (date of accident) and was not temporary but permanent. We think these findings sufficiently cover the fact sought to be elicited by defendant in the requested issue, and the ruling complained of did not constitute reversible error. We overrule defendant's third proposition. Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314.

The statute provides alternative methods of computing the average weekly wages of incapacitated employees for the purpose of determining the amount of compensation to be awarded them. Subd. 1 et seq., sec. 1, Art. 8309, R.S.1925, Vernon's Ann.Civ.St.Art. 8309 § 1, subd. 1 et seq. Defendant complains in its fourth proposition that those provisions of the statute were disregarded and violated in computing the award to plaintiff in this case. It may be, as defendant contends, that the statutory formula was technically disregarded below, but no injury was done defendant by the process, for the record shows, conclusively, that plaintiff was entitled as a matter of law to the full amount awarded, no matter what formula had been resorted to in computing the amount, and an award of a less amount could not have been sustained. The error, if any, was purely technical and harmless and does not warrant reversal. National, etc., Underwriters v. Rocamontes, Tex.Civ.App., 110 S.W.2d 228.

In its fifth proposition defendant complains of the submission of the issue of temporary incapacity in this form: ...