Sowell v. Travelers Ins. Co.

• Decision Date: 13 November 1963
• Docket Number: No. A-9398,A-9398
• Citation: 374 S.W.2d 412
• Parties: Rufus SOWELL, Petitioner, v. The TRAVELERS INSURANCE CO., Respondent.
• Court: Texas Supreme Court

Page 412

374 S.W.2d 412

Rufus SOWELL, Petitioner, v. The TRAVELERS INSURANCE CO., Respondent.

No. A-9398.

Supreme Court of Texas.

Nov. 13, 1963.

Rehearing Denied Feb. 5, 1964.

Fulmer, Fairchild & Badders, Nacogdoches, for petitioner.

Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for respondent.

GREENHILL, Justice.

This is a workmen's compensation case, brought by Rufus Sowell against The Travelers Insurance Company. The trial court entered judgment for Sowell upon jury findings that he had sustained 25 per cent partial incapacity for a period of fourteen months. Sowell appealed, contending for a larger recovery, but the Court of Civil Appeals affirmed. 363 S.W.2d 350.

Sowell alleged that on November 12, 1960, while in the course of his employment, he received an injury to his back which resulted in his total and permanent incapacity. Travelers' answer contained a general denial and alternative pleas to the effect that Sowell's alleged incapacity was caused solely, or partially, by prior injuries and infirmities.

Sowell testified that on November 12, 1960, while at work on his employer's poultry farm, he injured his back emptying a tub of water. Two days later he went to his family physician, Dr. Pennington, who placed him in the hospital where he remained for approximately three weeks. Dr. Pennington testified that in his opinion Sowell had sustained a ruptured disk in the lumbar region of his back. He was of the opinion that Sowell was totally disabled from performing manual labor as a result of the injury. He stated that Sowell had been suffering from a natural arthritic condition in his back for several years. He had discovered arthritic changes from X-rays taken in 1956 and 1960. He testified that such arthritic changes are disabling if they are painful or cause stiffness; that in May of 1960, Sowell had complained of severe shoulder pains which he had diagnosed as osteoarthritis; that Sowell's arthritic condition was just as prevalent in his lower back; and that arthritis and a back injury will create a likelihood of complications or prolonged disability.

It was also revealed that Sowell had received two prior compensable injuries. In 1950, his left leg was broken. In 1956, he suffered an injury to his lower back while swinging an axe. He was treated on both of these occasions by Dr. Pennington.

The jury found that Sowell's injury of November 12, 1960, resulted in partial incapacity for a period of fourteen months. Special Issue No. 14 inquired whether Sowell's leg injury of 1950 had contributed to his present incapacity. The jury found that it had. In answer to Special Issue No. 15, the jury found that the lower back injury of 1956 also contributed to Sowell's present incapacity. Special Issue No. 16 was submitted and answered as follows:

'From a preponderance of the evidence, what percentage, if any, of plaintiff's incapacity, if any you have found, is due solely to the alleged injury of November 12, 1960? Answer by stating the percentage, if any. Answer: 25%.'

In its charge the trial court gave the following definition:

'You are instructed that by the term 'INJURY' as used in this Charge, is meant damage or harm to the physical structure of the body, and such diseases or infection as naturally result therefrom, or the lighting up, acceleration or aggravation of any disease or condition previously existing, by reason of such damage or harm to the physical structure of the body.'

Sowell, as the petitioner in this Court, questions the correctness of Special Issue No. 16 as it was submitted by the trial court.

Prior to Sowell's latest injury of November 12, 1960, he received two separate compensable injuries, the broken leg of 1950 and the lower back injury of 1956. Travelers, therefore, was entitled to the submission of Special Issues No. 14 and No. 15. Article 8306, § 12c, Vernon's Ann.Civ.St. The jury found that these two prior compensable injuries contributed to the incapacity suffered by Sowell as a result of the injury of November 12, 1960. Special Issue No. 16 was calculated to determine the percentage of incapacity which was attributable to his last injury of November 12, 1960.

Sowell's complaint is directed to the use of the word 'solely' in that issue. He contends that 'solely' incorrectly precluded the jury from considering his previously existing arthritic condition in determining the amount of his present incapacity. As Issue No. 16 was submitted, the jury could consider only the incapacity resulting solely from the damage to Sowell's body by the occurrence of November 12, 1960. Travelers argues that the trial court's definition of the term 'injury' corrected any supposed error in Issue No. 16. The definition, set out above, allowed the jury to consider the incapacity resulting from the physical trauma which occurred on November 12, 1960, the diseases or infections naturally resulting therefrom, and the acceleration or aggravation of previously existing diseases or conditions. Sowell asserts that in spite of the definition, the jury was still required to exclude from its consideration any incapacity produced concurrently by the injury and the arthritic condition. Under the definition, the pre-existing arthritic condition must have been accelerated or aggravated to be taken into account in ascertaining Sowell's incapacity. No such limitation exists in the cases, as will be discussed below.

An employee is entitled to compensation for an injury received in the course of his employment, regardless of the fact that he may have been previously suffering from a disease which contributed to the incapacity resulting from said injury. Texas Employers' Insurance Ass'n v. Parr, 30 S.W.2d 305 (Tex.Comm.App., 1930); Texas Indemnity Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026 (1940); St. Paul Fire & Marine Ins. Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744 (1962).

In the Parr case, it was said:

'The law (is) that an employee is entitled to compensation for an injury received in the course of employment, notwithstanding the employee may have been afflicted with a disease or diseases which had substantially contributed to his condition * * *.'

We think Special Issue No. 16 probably prevented the jury from arriving at a result in harmony with this rule of law.

The insurance company is correct in its assertion that issues similar to No. 16 here have been held to be proper in other cases. Thus in Texas Indemnity Insurance Co. v. Perdue, 64 S.W.2d 386 (Tex.Civ.App., 1933, wr. ref.), the insurer was held to be entitled to issues as to whether there had been previous compensable injuries to plaintiff, 'and what percentage of such incapacity resulted alone from the injuries' complained of. But there were no noncompensable injuries or pre-existing diseases in that case, and the point raised here was not raised in the Perdue case. Nor was the definition given in this case at iseue in the Perdue case.

In Texas Employers Insurance Association v. Griffis, 141 S.W.2d 687 (Tex.Civ.App., 1940, no writ), there was evidence of prior injuries, and the special issue on the latest injury there in question was worded, 'What percentage of plaintiff's present incapacity * * * is attributable solely to the alleged injury of December 20, 1938?' The jury answered, '100%,' and that prior injuries did not contribute to plaintiff's incapacity. Moreover there was no evidence of previously existing disease or condition. Hence that case is clearly distinguishable. Similarly, in Travelers Insurance Co. v. Glenn, 358 S.W.2d 136 (Tex.Civ.App., 1962, n. r. e.), there had been a former compensable injury. The Court of Civil Appeals indicated that the trial court could have had the jury determine the percentage of incapacity which was solely due to the prior injury, or it could have had the jury find the percentage of incapacity injury or disease was involved; and, again, injury. Again, no previous noncompensable injury or desease was not raised. There the point here present was not raised. There are other cases of a similar nature which are distinguishable on similar grounds. Traders & General Insurance Co. v. Watson, 131 S.W.2d 1103 (Tex.Civ.App., 1939, dism., judg. corr.).

The facts in this case present a distinctive situation. Dr. Pennington testified that Sowell's prior arthritic condition could concur with his injury to increase and prolong his incapacity. This evidence clarly invoked the substantive rule of law announced in the Parr case. The problem of the trial court was to frame an issue from which the jury could determine that amount of Sowell's present incapacity which had resulted from both his injury of November 12, 1960, and his previously existing diseases and physical conditions which contributed to his incapacity. The insertion of the word 'solely' into Special Issue No. 16 was evidently intended to exclude from the jury's consideration that portion of Sowell's incapacity resulting from the two prior compensable injuries. But this wording gave an overreaching effect to the issue.

Sowell requested the submission of a special issue which inquired what percentage of his present inacapacity resulted from the prior compensable injuries of 1950 and 1956. This, is our opinion, would have ben the better way to submit this phase of the case to the jury. With these facts determined, the insurance company is relieved of paying compensation for previous injuries which contribute to the plaintiff's incapacity, and at the same time, the plaintiff is given the benefit of the holding in the Parr case.

As stated above, there have been cases in which the wording employed in Special Issue No. 14 has been held to be acceptable. It may be proper where there is evidence only of prior compensable injuries and none of a previously existing disease or physical condition or previous noncompensable injury which might have been a contributing cause of incapacity. But, it is in cases such as this, where there is...