Southern Underwriters v. Parker

• Decision Date: 26 May 1939
• Docket Number: No. 3476.,3476.
• Citation: 129 S.W.2d 738
• Parties: SOUTHERN UNDERWRITERS v. PARKER.
• Court: Texas Court of Appeals

129 S.W.2d 738

SOUTHERN UNDERWRITERS v. PARKER.

No. 3476.

Court of Civil Appeals of Texas. Beaumont.

May 26, 1939.

Rehearing Denied June 7, 1939.

Error from District Court, Jefferson County; R. L. Murray, Judge.

Suit under the Workmen's Compensation Act by J. G. Parker to set aside an award of the Industrial Accident Board in favor of the Southern Underwriters. Judgment for claimant as for total and permanent disability, and the defendant brings error.

Affirmed.

Battaile & Burr, of Houston, for plaintiff in error.

McDougald & Beck, and Gordon, Sharfstein, Bell & Weinert, all of Beaumont, for defendant in error.

O'QUINN, Justice.

This case arose under the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq. Glenn H. McCarthy, Inc., was the employer, defendant in error, J. G. Parker, the employee, and the Southern Underwriters the compensation insurance carrier. We shall refer to plaintiff in error as appellant, and defendant in error as appellee. Appellee filed claim with the Industrial Accident Board for compensation as for total and permanent disability. The Board made its final award, and appellee duly gave notice that he would not abide the award and filed this suit in the district court of Jefferson County to set the award aside and to recover compensation.

The case was tried to a jury upon special issues, upon the answers to which judgment for appellee was rendered as for total and permanent disability in the sum of $3,473.15 same to be paid in a lump sum. Motion for a new trial was overruled and we have the case for review.

Appellant presents its first, second and third assignments grouped. In effect they are: (a) That appellee having alleged that the portions of his body which were injured were his eyes, nose, throat, lungs and respiratory organs, the court erred in submitting to the jury, over its objections that the inquiry should be confined to the injuries pleaded, the general issue: "Do you find from the preponderance of the evidence that plaintiff, J. G. Parker, sustained personal injuries on the 18th day of April, 1937", and in not confining the inquiry to the injuries alleged; (b) the appellee having alleged that his injuries were the natural result of encountering poisonous and noxious gases escaping from unlighted flares, and having alleged no other injury, the court erred in submitting to the jury, over appellant's objection that the inquiry should be confined to the injuries resulting from the cause pleaded, the general issue: "Do you find from the preponderance of the evidence that plaintiff, J. G. Parker, sustained personal injuries on the 18th day of April, 1937", and in not confining the inquiry to the specific injuries alleged that were caused by such gas; and (c) that the court erred in submitting the general issue: "Do you find from the preponderance of the evidence that the plaintiff, J. G. Parker, sustained personal injuries on the 18th day of April, 1937", over the objections of appellant that the inquiry should be confined to the injuries pleaded, viz., injuries to his eyes, nose, throat, lungs and respiratory organs, and to those resulting from the cause alleged, viz., gas escaping from unlighted flares, was not obviated by special issue No. 4a, "Do you find from a preponderance of the evidence that any injuries, if any, sustained by the plaintiff on April 18th, 1937, directly resulted from exposure to gas escaping from unlighted flares of plaintiff's employer."

The gist of the three assignments is that appellee having alleged that while driving across the lease then being operated by his employer, Glenn H. McCarthy, Inc., he drove in close proximity to where two flares which should have been lighted to burn escaping gas were not lighted and he drove into this area which was contaminated by escaping gas and was thereby injured, the injury affecting his eyes, nose, throat, lungs and respiratory organs, the result of which was to totally and permanently disable him, that the submitting of the general issue inquiring whether he sustained personal injuries on said date was error because it did not confine the jury, in answering this issue, to considering injuries to the particular portions of the body named. We think the contention is without force. Among other things, appellee alleged: "while plaintiff was driving across said lease and in close proximity to where two (2) of said flares should have been maintained, plaintiff drove into a space contaminated with and filled by poisonous and noxious gases then and there escaping from the jets, which should have been ignited, thereby permitting said gas flares to burn as intended, thereby preventing escape of noxious and poisonous gases in and about said premises; that as a natural result of encountering such poisonous and noxious gases at such time and place, plaintiff's eyes, nose, throat, lungs and respiratory track and organs were each and all severely burned by such poisonous and noxious gases which attacked said organs, linings, membranes and various other parts and portions thereof, and partially destroyed plaintiff's sense of sight, which is progressively becoming more and more impaired; and which said injuries naturally resulted in various diseases and infection to such injured parts and members thereby exciting and accelerating a dormant tubercular condition then existing within plaintiff, thereby causing the same to become active and disabling, or in the alternative, and in the event plaintiff be mistaken in his allegation that such injuries excited and accelerated such tubercular condition, and in only such event, plaintiff says that such injuries produced such tubercular condition and caused the same, each and all of which thereby destroyed, lessened and impaired said organs and parts of plaintiff's body, and their several functions, use, utility and efficiency, and that the several respective functions, use and utility of said parts of plaintiff's body have, because of said injury and not otherwise, become destroyed, injured, lessened and greatly and permanently impaired, and that by reason of each and all such injuries, disabilities and impairments, and not otherwise, plaintiff has continuously since the time of said injury been sick and sore and suffered great physical pain and anguish and become totally and permanently disabled."

The allegations of parts injured are alleged as an injury resulting in total and permanent incapacity—they all constituting one whole result. There is no complaint that any evidence was introduced of an injury not supported by the pleading, nor of any injury other than those sustained on April 18, 1937, set out in the petition. The complaint is simply that the issue was too general, the objection not pointing to any matter specifically.

In Southern Underwriters v. Kelly, Tex. Civ.App., 110 S.W.2d 153, 155, special issue No. 1 submitted to the jury was: "Do you find from a preponderance of the evidence that the plaintiff, V. E. Kelly, sustained an injury to his body on the 17th day of October, 1934?"

This was followed by the statutory definition of an injury. Among others, the same objection to the court's charge submitting this issue to the jury was made as here—that it was too general, did not confine the jury or limit them in determining said issue to the injuries alleged in the petition. Kelly alleged back injuries on the date set out. The evidence showed the injury to his back, and in addition disclosed that on the same day Kelly received an injury to one of his thumbs by getting it caught in a pump at which he was washing his hands. The contention that the issue was too general and permitted consideration by the jury of other injuries than those alleged was denied. (Application for writ was dismissed.)

In Traders & General Ins. Co. v. Offield, Tex.Civ.App., 105 S.W.2d 359, 360, where a like issue was under consideration, the court said: "By its fourth and fifth propositions appellant asserts that the trial court erred in submitting special issue No. 1 to the jury, which is: `Do you find from a preponderance of the evidence that the defendant, H. H. Offield, sustained an injury to his body on the 9th day of October, 1933?' The contention is that the pleadings and proof of appellee had reference only to an injury to...