Texas Emp. Ins. Ass'n v. Childress

• Decision Date: 29 June 1961
• Docket Number: No. 6413,6413
• Citation: 349 S.W.2d 326
• Parties: Page 326 349 S.W.2d 326 TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. D. Z. CHILDRESS, Appellee. Court of Civil Appeals of Texas, Beaumont
• Court: Texas Court of Appeals

Page 326

349 S.W.2d 326

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant v D. Z. CHILDRESS, Appellee.

No. 6413.

Court of Civil Appeals of Texas, Beaumont.

Jane 29, 1961.

Rehearing Denied Sept. 6, 1961.

Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellant.

Watson & Selman, Beaumont, for appellee.

HIGHTOWER, Chief Justice.

This is a Workmen's Compensation case in which appellee Childress recovered judgment for total and permanent loss of the use of his right hand against the appellant. The sole question before the court is whether or not a fatal conflict existed between certain of the jury's answers to the special issues submitted.

Appellee plead and tried his case on the sole theory that no the occasion in question, he was hit on his right hand with an eight pound sledge hammer, breacking the bones in his hand and fingers and injuring the soft tissues of his hand and especially the tendons thereof, and causing him to sustain total and permanent loss of the use of his right hand.

The defensive theory was to the effect that the appellee suffered injury to his right ring finger and that any incapacity or disability to the right hand was caused by the use or attempted use of such right ring finger.

As here material the answers of the jury were in substance:

'5. That the plaintiff sustained total loss of the use of his right hand following the injury of March 12, 1959, (6) which injury was a producing cause of the total loss of the use of his right hand.

'15. That the plaintiff sustained total loss of the use of his right ring finger following the injury of March 12, 1959.

'25. That plaintiff sustained total loss of the use of his right little finger following the injury of March 12, 1959.

'35. That the injury sustained by plaintiff extended to and affected other parts of his hand than his finger or fingers to be a producing cause of the loss of use of his right hand.

'36. That the plaintiff's loss of use of his right hand is caused solely by the loss of use, or attempted use, of his right ring finger and little finger.'

Upon the return of this verdict, the trial court concluded that there was a fatal conflict between the jury's answers to Special Issues Nos. 5, 35, and 36, and so instructed the jury, informing them to retire for further deliberations in order to resolve such conflict. To this action of the court, the appellant took exception and urged that the court accept the verdict of the jury as originally returned and enter judgment thereon. Appellant's motion for judgment having been overruled, the jury retired and subsequently changed their answer to Special Issue No. 36 by finding that the plaintiff's loss of use of his right hand was not caused solely by the loss of use, or attempted use, of his right ring finger and right little finger. Whereupon the court entered judgment in favor of the plaintiff for total and permanent loss of the use of his right hand.

We approve the decision of the trial court in the matter. The theory upon which appellee sought to recover was that as a direct result of the accident, his hand was severely smashed and lacerated. The evidence more than supports such theory. We note the court's charge contained no issues inquiring whether or not appellee specifically sustained any injuries to his fingers, nor any injury to his hand exclusive of his fingers. The record does contain the stipulation...