Texas Emp. Ins. Ass'n v. Maston, 6826

• Decision Date: 02 February 1959
• Docket Number: No. 6826,6826
• Citation: Texas Emp. Ins. Ass'n v. Maston, 321 S.W.2d 343 (Tex. Ct. App. 1959)
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Arthur H. MASTON, Appellee.
• Court: Texas Civil Court of Appeals

Page 343

321 S.W.2d 343

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Arthur H. MASTON, Appellee.

No. 6826.

Court of Civil Appeals of Texas, Amarillo.

Feb. 2, 1959.

Rehearing Denied March 2, 1959.

Vickers & Vickers, Lubbock, for appellant.

Huff & Splawn, Lubbock, Forrest Bowers, Lubbock, of counsel, for appellee.

NORTHCUTT, Justice.

This is a Workmen's Compensation case. The case was tried to a jury upon special issues and the jury found that the plaintiff, Maston, sustained an accidental personal injury or injuries to his body on or about August 7, 1956; that such injury or injuries were sustained by him while working as an employee of Plains Co-Operative Oil Mill, Inc.; that he received such injury or injuries in the course of his employment; that he sustained total incapacity from August 7, 1956, but that such total incapacity was temporary and was only for a period of 180 weeks; that he did not and would not sustain any partial incapacity and that plaintiff's incapacity to work was not solely the result of prior injuries, diseases or infirmities or the combination thereof. Judgment of the trial court was entered in favor of the plaintiff upon the findings of the jury. Motion for new trial was made by defendant but was overruled by the trial court. Defendant perfected this appeal and will be hereafter referred to as appellant and the plaintiff will be hereafter referred to as appellee.

Appellant presents this appeal upon nine points of error but discusses them under six headings. We feel that we can best present the matters here involved by discussing appellant's first six points of error together, which are as follows:

'First Point

'The trial court erred in admitting special issue No. 1 in its present from, for the reason that it failed to limit the jury's consideration to the injury described in Maston's pleadings and sought to be proved by Maston.

'Second Point

'The trial court erred in refusing to submit appellant's requested Special Issue No. 5 or in the alternative Special Issue No. 6 in that either of said issues would limit the jury's consideration to the injuries alleged and sought to be proven by Maston.

'Third Point

'The trial court erred in the manner in which it submitted the definition of 'Injury' or 'Personal Injury' by the addition of the words 'Or Incitement, Acceleration, and /or Aggravation of any disease, previously or subsequently existing', for the reason that there was no evidence to support such instruction thereby constitution a comment on the weight of the evidence.

'Fourth Point

'The trial court erred in the manner in which it submitted the definition of 'Injury' or 'Personal Injury' by the addition of the words 'Or Incitement, Acceleration, and/or Aggravation of any disease previously or subsequently existing', for the reason that there was no evidence to support such instruction thereby constituting a comment on the weight of the evidence for the reason that it allowed the jury to speculate on injuries not plead or proved.

'Fifth Point

'The trial court erred in failing to declare a mis-trial during the jury argument by appellee's attorney when he told the jury they were required under the court's charge to answer Special Issue No. 1 'Yes' if they believed Maston had aggravated a pre-existing condition.

'Sixth Point

'The trial court erred in failing to instruct the jury to disregard the argument of appellee's attorney when he informed the jury they were required under the court's charge to answer Special Issue No. 1 'Yes' if they believed Maston had aggravated a pre-existing condition.'

Appellee in his notice of injury and claims for compensation stated he was injured while 'lifting a 100 1b. container of hulls and while lifting it from the packer to the scales and while in an awkward and strained position severely injured his back and low back together with injuries to his groins and the rupture and contusion of all the nerves, muscles, tendons, ligaments, soft tissue and blood vessels in his back and low back and groins, all of which have rendered him totally and permanently disabled under the provisions of the Workmen's Compensation Act of the State of Texas [Vernon's Ann.Civ.St. art. 8306 et seq.].' Then, in his original petition he pleads as follows:

'that he was engaged in the course of his usual and regular employment for said employer; that while engaged in his employment as an employee, laborer and/or oil field worker for said above mentioned employer, Plains Co-Operative Oil Mill, Inc., plaintiff was suddenly, accidentally and unexpectedly injured in that he was lifting a 100 1b. container of hulls and while lifting the container from the packer to the scales and while in an awkward & strained position, severely injured back and low back and as a result of said accident, plaintiff sustained and suffered the following injuries: reptured intervertebral disc between the 5th lumbar vertebrae and sacrum; together with severe muscle spasm, anesthesia and severe pain radiating down into the lower extremities, together with the rupture and contusion of all the nerves, muscles, tendons, ligaments, soft tissue and blood vessels in the back and low back and all of which have rendered this plaintiff totally and permanently disabled under the terms and provisions of the Workmen's Compensation Act of the State of Texas.'

Then, during the trial contends that while lifting a 100 1b. container of hulls and while lifting it from the packer to the scales he fell on his back across the scales and injured his back as contended. Although it is stated in appellee's brief that appellee alleged by a trial amendment about a previously existing physical condition was aggravated, but the trial amendment only refers to a pre-existing condition. There was no pleadings as to what that pre-existing condition was.

The first issue herein submitted together with the court's instructions was as follows:

'Special Issue No. 1

'Do you find from a preponderance of the evidence that the plaintiff, Arthur Maston, sustained an accidental personal injury or injuries to his body on or about August 7, 1956?

'You are instructed that the term 'Injury' or 'Personal Injury's as used in this charge, shall be considered to mean damage or harm to the physical structure of the body and such diseases and infections as naturally result therefrom or the incitement, acceleration, or aggravation of any disease, previously or subsequently existing by reason of such damage or harm to the physical structure of the body.

'Answer 'Yes' or 'No'

'Answer Yes'

The appellant objected to the court's instruction as to the meaning of injury and personal injury and also the manner of submitting the issue and requested that appellant's Special Issues 5 and 6 be given, which were as follows

'Defendant's Specially Requested Issue No. 5

'Do you find from a preponderance of the evidence that the plaintiff Arthur Maston sustained an accidental personal injury to his back by falling across the scales at the Plains Co-Operative Oil Mill on or about August 7, 1956?

'Answer 'Yes' or 'No.'

'Answer: _____

'Refused

'Robt. H. Bean

'Judge Presiding.

'Defendant's Specially Requested Issue No. 6

'Do you find from a preponderance of the evidence that the plaintiff Arthur Maston sustained an accidental personal injury to his back on or about August 7, 1956?

'Answer 'Yes' or 'No'.

'Answer: _____

'Refused

'Robt. H. Bean

'Judge Presiding'

both of which were refused.

As we understand the contention of the appellee his sole complaint is, under either theory, whether it was by lifting the 100 1b. sack or falling on the scales, it was the injury to his back that caused the injury here complained of. We are of the opinion that the case of Southern Underwriters v. West, Tex.Civ.App., 126 S.W.2d 510, 511 (writ refused) is directly in point here where the court said:

'That the proof and the allegation must correspond is so well established in this State that no authority is necessary, however, we cite the following: Stephenson v. Stitz, Tex.Civ.App., 235 S.W. 271; Automobile Ins. Co. v. Bridges, Tex.Civ.App., 5 S.W.2d 244; Denison v. League, 16 Tex. 399, 400; Texas Pac. Ry. Co. v. Grimes, Tex.Civ.App., 21 S.W. 402; Cooper v. Loughlin, 75 Tex. 524, 13 S.W. 37.

'The error pointed out above is intensified by the manner in which the issue of injury was submitted to the jury. Special Issue No. 1, of the court's charge, together with the answer thereto, was as follows:

'Do you find from a preponderance of the evidence that the plaintiff sustained an injury in the course of his employment with Ben F. Smith, on or about July 26, 1937? Answer: 'Yes' or 'No.'

"We, the jury, answer: 'Yes'.'

'Plaintiff in error objected to this issue because there was no evidence justifying its submission, and because it was too general and permitted the jury to take into consideration injuries and incapacities other than may have been sustained by the defendant in error, and other than those alleged in his petition, and does not confine the jury to the allegations of defendant in error's petition supported by the evidence, in determining whether or not the defendant in error sustained by the personal injuries inquired about. The objection should have been sustained. The pleadings having definitely described in detail the injury alleged to have been suffered by defendant in error, it was not proper to submit the issue in general language so as to include injuries not described in the pleadings. And especially is this true when the evidence conclusively shows that defendant in error did not sustain the injury described in the petition. , 41 Tex.Jur. 1092; Traders' & General Ins. Co. v. Low, Tex.Civ.App., 74 S.W.2d 122, writ of error refused; New Amsterdam Casualty Co. v. Rutherford, Tex.Civ.App., 26 S.W.2d 377; Security Mutual Casualty Co. v. Bolton, Tex.Civ.App., 84 S.W.2d 552; Texas Ind. Ins. Co. v. Pemberton, Tex.Civ.App., 9 S.W.2d 65; ...