Superior Ins. Co. v. Burnes, 12796

• Decision Date: 28 April 1955
• Docket Number: No. 12796,12796
• Citation: 278 S.W.2d 934
• Parties: SUPERIOR INSURANCE COMPANY, Appellant, v. W. E. BURNES, Appellee.
• Court: Texas Court of Appeals

Page 934

278 S.W.2d 934

SUPERIOR INSURANCE COMPANY, Appellant, v. W. E. BURNES, Appellee.

No. 12796.

Court of Civil Appeals of Texas, Galveston.

April 28, 1955.

Rehearing Denied May 19, 1955.

Vinson, Elkins, Weems & Searls, Thos. B. Weatherly and J. M. Hopper, Houston, for appellant.

Hill, Brown, Kronzer & Abraham, Frank Abraham and W. James Kronzer, Houston, for appellee.

HAMBLEN, Chief Justice.

This suit was instituted in the District Court of Harris County by the appellee, W. E. Burnes, to recover compensation for alleged total permanent disability under the workmen's compensation statutes of the State of Texas. Appellee, while within the course of his employment for the Wyatt Metal and Boiler Works in Houston, was unfastening a chain from an overhead crane that was attached to a so-called 'skirt-ring', which is a large metal cylinder twelve feet in diameter and six feet high. Appellee was on top of the 'skirt-ring', and jumped off it, a distance of six feet, onto a concrete floor, when the ring was moved slightly by the overhead crane. He alleged that as a result of this occurrence he received injuries to his hip, back and spine, all of which resulted in total permanent incapacity. Trial before a jury resulted in a verdict which found appellee to have been totally and permanently disabled from the date of injury on March 8, 1951. This appeal is from a judgment entered upon such verdict.

In its brief appellant presents nineteen points of error. For the purposes of its argument, appellant has grouped its stated points of error to present three basic propositions upon which it contends that the judgment entered below should be reversed and rendered, or, alternatively, reversed and remanded for a new trial. The points will be considered as they have been so grouped by appellant.

Points one to eleven, inclusive, while stating distinct errors assertedly committed by the trial court, and preserved in the record by appellant, are all directed to the contentions: (1) that there is no evidence in the record to support the submission of the issues of total permanent disability; or (2) that the verdict of the jury in response to such issues is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong. The first is determined by a review of the evidence in the light most favorable to the verdict, and if found to be correct, a reversal and rendition of the judgment would be required. The second is determined by a review of all the evidence, and if sustained, would require a reversal of the judgment entered, and a remand of the case for retrial. We have concluded after reviewing the evidence in the manner indicated that neither of appellant's contentions can be sustained, and that consequently its points one to eleven, inclusive, must be overruled. Our reasons for such conclusion require a statement of the facts as presented by the record. The following, while necessarily condensed, is considered to be a fair summary of the facts which bear upon the question.

At the time of the trial of this case, which began about three years after appellee claimed to have sustained his injuries, appellee was thirty-four years of age, was married and had three children. He had completed two years of elementary school, and had never been gainfully employed in any capacity other than as a manual laborer. He had been employed by Wyatt Metal & Boiler Works on three different occasions, beginning in 1942. His last employment with that employer began in 1947 and continued until December, 1953. On March 8, 1951, appellee was classified as a fitter, working eight hours a day, six days a week, and earning $1.69 per hour. He described his work as consisting of fitting metal parts of boilers together preparatory to welding, and as necessitating occasional, to frequent, lifting and carrying of heavy objects.

Appellant reviews the evidence relative to appellee's activities following the time of his alleged injury substantially as follows:

After the accident occurred appellee continued with his employment for the remainder of the day and returned to work the next day, and in fact admitted that to the best of his recollection it was two or three weeks before it was necessary for him to take off any time as a result of this accident. He continued to work for Wyatt Metal & Boiler Works until December, 1953, more than two and one-half years following the date of the accident. In 1950, the year before appellee was injured, his total earnings were $3,368.95. In 1951, the year this accident occurred, appellee earned $4,550.54, and in 1952, when appellee was off from work for a period of nine weeks with yellow jaundice, he had an income of $3,907.01. In 1953, the year appellee was discharged, he earned $4,057.92, although he did not work during December of that year. During this two and one-half year period, appellee received several merit increases in pay in addition to general increases, and, at the time he was discharged, was receiving $1.99 per hour.

Essentially it is the appellant's contention that the undisputed evidence, as summarized above, completely negatives the assertion that appellee suffered total and permanent disability, and that there is no evidence in the record to warrant the submission of the issues upon which the judgment rests. Alternatively, it contends that in view of such evidence, the answers of the jury in response to the submitted issues are so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong. In support of such contentions, it cites the following authorities: Texas Employers' Ins. Ass'n v. Moran, Tex.Civ.App., 261 S.W.2d 855; Indemnity Ins. Co. of North America v. Campbell, Tex.Civ.App., 19 S.W.2d 622; Bishop v. Millers' Indemnity Underwriters, Tex.Civ.App., 254 S.W. 411; and Lumbermen's Reciprocal Ass'n v. Wells, Tex.Civ.App., 283 S.W. 208.

Our conclusion that appellant's points one to eleven, inclusive, must be overruled results not from any difference in view relative to the existence of undisputed evidence supporting the factual basis upon which it bases its stated contentions, but only from a different view of the legal effect of such evidence. It is our view that the stated evidence is not, as appellant contends, conclusive upon the issue of total and permanent disability, but is only evidentiary, and must be considered along with other evidence bearing upon the issue. The following additional evidence is considered by this Court to be probative of the ultimate fact:

On each of the three different occasions that he had worked for Wyatt Metal & Boiler Works, appellee had been passed physically by the company medical examiners. He was held in extremely high regard by the company as a worker, and as an honest, high type loyal man. He testified that when he jumped from the skirtring, he was in a twisted position, and hit flat-footed on the concrete floor, causing him 'severe real sharp pain' where his backbone hooked onto his hips. He did not think it serious at the time and continued on working that day; however when he got home that night he could hardly get out of the car because his back hurt so bad. His wife rubbed his back with liniment, but he got no rest that night. His wife testified that she pleaded with him to see a doctor, because, 'I could tell from living with him as long as I had that he was in constant pain.' Shortly thereafter appellee went to first aid where he received heat treatments two or three times a day. The nurse concluded that the heat treatments weren't doing him any good, and sent him to the company doctor. The doctor took appellee off his job from April 23 to May 14, and treated him with hot pads, novocaine injections, and a back belt. The doctor recommended that appellee refrain from driving his car. The patient did not improve and the doctor requested a consultation with Dr. Edward T. Smith. Dr. Smith concluded that appellee had suffered a muscular or ligamentary strain of a congenitally weak back, which would take longer to get well than a normal back. Mrs. Burnes testified that her husband stayed in bed during the time of his layoff, taking treatments and taking his exercises, but that he seemed to get worse. She stated that he returned to work because they didn't have any money, that she was sick and going to a doctor herself, and that they had to have money.

On June 20, 1951, appellee went to see Dr. F. O. McGehee, an orthopedic specialist, and continued seeing him from then on around once a month. Dr. McGehee's examination revealed the following physical findings: the left leg was one-half inch smaller in diameter than the right; there was a positive Patrick's sign on the left; that the point of maximum tenderness was at the left of the lumbosacral joint; and there was twenty-five per cent restriction of motion to the left. The X-rays revealed the following abnormalities in his spine: (1) a slipping-over, or subluxation of the articular facets between the fifth lumbar and the sacrum; (2) a defect in the sacrum known as a spina bifida; and (3) some narrowing of the lumbosacral joint. He diagnosed the case as (1) a ruptured intervertebral disc, and (2) a traumatic injury to the articular facets on the left side between the lumbar 5 and 1st sacral segments. He felt that appellee's trouble was a combination of the slipping of the articular facets and a ruptured disc, and that the type of accident that appellee had (i. e., hitting flatfooted with a tendency to jack-knife) was typical of an accidental injury that might cause ruptured disc. Dr. McGehee reported to the Superior Insurance Company and prescribed a steel Nelson back brace until Mr. Burnes was able to have an operation. Although the brace had several repairs, Mr. Burnes...