Texas Emp. Ins. Ass'n v. Yother, 15841

• Decision Date: 11 October 1957
• Docket Number: No. 15841,15841
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Stanley J. YOTHER, Appellee.
• Court: Texas Court of Appeals

Page 730

306 S.W.2d 730

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Stanley J. YOTHER, Appellee.

No. 15841.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 11, 1957.

Rehearing Denied Nov. 15, 1957.

Burford, Ryburn, Hincks & Ford and Howard Jensen, Dallas, for appellant.

Peery & Wilson and Kearby Peery, Wichita Falls, for appellee.

MASSEY, Chief Justice.

From a judgment for claimant Stanley J. Yother for total and permanent disability benefits under the Texas Workmen's Compensation Act, the Company, Texas Employers' Insurance Association, brings an appeal.

Judgment is affirmed.

Upon the trial the parties stipulated that in the event the verdict of the jury was for total and permanent disability the Company would pay same in a lump sum. As a result, the question of claimant's financial circumstances and hardship incident to payment of compensation from week to week passed out of the case. Upon cross-examination the Company's attorney asked the claimant how much money his lawyers had given him since he employed them. An objection to the question was sustained. Sustaining the objection was proper. Whether or not claimant's attorneys or anyone else had given him money would have no bearing on any issue in the case.

Also during cross-examination Company's counsel wanted to ask claimant if it were not a fact that he had served a term in the penitentiary at Huntsville on a conviction in 1934 for 'bootlegging'. It was further desired to show that he had been in jail on various occasions. It seems that claimant was incarcerated temporarily on numerous occasions incident to drinking whiskey. On direct examination, without objection, claimant had testified that he had never been charged with or convicted of a crime, and that he had never been in jail anywhere. The matter, whether upon direct or cross-examination, was not relevant to any issue in the case. Of course, claimant's incarceration in the penitentiary was pursuant to a conviction of a felony, but it was over 20 years prior to the occasion of the trial, and it does not appear that the Company was prepared to show additionally that claimant had not reformed. Indeed, the sale of whiskey in this state is a licensed business at present.

Claimant's testimony upon the matter during his direct examination was inadmissible and would have been stricken upon an objection interposed. However, there was no objection. The Company desired to show that the witness was lying, albeit upon an immaterial matter. That being the case the trial court properly sustained the objection taken to the attempt at impeachment, for it is well established that a witness cannot be contradicted upon a matter immaterial to the disposition of issues on trial. 45 Tex.Jur., p. 26, 'Witnesses', sec. 193, 'Right to Contradict in General'.

Though the penitentiary sentence was undoubtedly a felony, the evidence was not rendered admissible by reason thereof (even considered as having involved moral turpitude--see McCormick and Ray, Texas Law of Evidence, 2nd Ed., sec. 660, as to necessity therefor) since it was too remote--consideration given to the fact that proof tendered thereupon did not include evidence showing that the claimant had not mended his ways and reformed. Bernard's, Inc., v. Austin, 1927, Tex.Civ.App., Dallas, 300 S.W. 256, error refused. It is to be noted that the Supreme Court's notation 'refused' came within a few months after the notation first began to mean 'principles of law declared in the opinion of the court are correctly determined.'

The Company's points four, five and six all relate to a particular manner in which certain special issues were submitted and phrased, as a result of which the Company contends that the jury was permitted to base a finding of total and permanent disability in whole or in part upon loss of use of a specific member rather than upon general injuries,--or to make a like finding under a theory or pyramiding the disability from general injury upon disability from a concurrent specific injury rather than permitting recovery only for the injury causing the longest period of incapacity.

The special issues in question are:

'Special Issue No. 2: Do you find from a preponderance of the evidence that the Plaintiff sustained an injury on or about the 24 day of April 1956? Answer 'Yes' or 'No." (The jury answered 'Yes.')

'Special Issue No. 5: Do you find from a preponderance of the evidence that the Plaintiff sustained any total disability following the injury, if any, inquired about in Special Issue No. 2? Answer 'Yes' or 'No." (The jury answered 'Yes.')

'Special Issue No. 6: Do you find from a preponderance of the evidence that the injury, if any, previously inquired about, was a producing cause of the total disability, if any, sustained by the Plaintiff? Answer 'Yes' or 'No." (The jury answered 'Yes.')

'Special Issue No. 8: Do you find from a preponderance of the evidence that such total disability, if any, inquired about in Special Issue No. 5, has been and will be permanent, or has been or will be temporary? Answer 'Permanent' or 'Temporary." (The jury answered 'Permanent.')

However, there were other special issues which are important to note, along with jury findings made thereon. In Special Issues Nos. 2-A, 2-B, 2-C and 2-D the jury was requested to and did find that the injury inquired about in Special Issue No. 2 was an injury to his back and neck, each and both of which was a producing cause of his disability. No issue found that the injury to the leg produced any disability. No issue thereon was submitted. In Special Issue No. 19 the jury refused to find that the injury (injuries) resulting from his accident was confined to his left foot, ankle, and leg below the knee.

In the pleadings of the parties the claimant relied upon a contention of general injury, i. e., to the neck, back and leg. The Company plead that the injuries were confined to the left ankle and leg below the knee. In view thereof an issue as made by the pleadings was whether or not the claimant sustained a general injury concurrent with an injury to the left leg below the knee, whether the general injury was a producing cause of his disability, and whether the disability experienced by the claimant was total and permanent.

We believe that the general rule is established that where an injured workman proves an injury to a specific member of the body and also a concurrent general injury, he is entitled to recover for the injury which produces the longest period of disability, and that where both injuries are permanent he is entitled to recover for the combined effects of both.

Although the Company's pleadings affirmatively presented the question of the 'confinement' of claimant's injuries to the ankle and leg below the knee, it did not likewise present the question of whether the incapacity, if any, of the claimant was caused solely by the injury to and/or the incapacity stemming from, the claimant's ankle and leg below the knee. For convenience of disposition we will treat the pleadings as though they had done so. With the pleadings so treated the Company would have had the burden of proving and having issues thereon submitted to the jury and answered in such manner as would establish that the claimant's incapacity was caused solely by the injury to, and/or the incapacity stemming from, the ankle and leg below the knee. The Company did not request issues upon these questions. It did specially request an issue inquiring whether the injury which resulted from the claimant's accident was confined to his left foot, ankle and leg below the knee. This question was quite different from those which would have been posed by inquiries bearing upon the cause of the incapacity inquired about in the claimant's issues, presenting an affirmative defense (or defenses) in such regard. Texas General Indemnity Co. v. Scott, 1952, 152 Tex. 1, 253 S.W.2d 651. Issues thereupon would not be issues relied upon by the claimant, so the failure of the trial court to submit issues posing the questions in a satisfaction of the Company's objections and exceptions would not be grounds for reversal since no additional special issues were requested in writing and tendered by the Company to the court prior to the submission of the charge. Texas Rules of Civil Procedure, rule 279.

Neither the existence nor the sufficiency of the evidence to support the allegations of the claimant's petition upon the matter of general injury, nor of the jury's verdict in such regard, is challenged upon the appeal. The jury could have concluded that the claimant's disability was the result of the cumulative effect of all of the injuries described in the petition on which there was evidence. No issues having been requested nor submitted in limitation or qualification of the effect of the jury findings, we are of the opinion that we should accept such, in disregard of any further possible conclusion that the finding of total disability was based upon injury to claimant's leg and from disability resultant therefrom in a greater number of weeks than the 125 prescribed in Article 8306, sec. 12, Vernon's Ann.Civ.St. Hargrove v. Trinity Universal Ins. Co., 1953, 152 Tex. 243, 256 S.W.2d 73. Furthermore, it seems to have become settled that where incapacity stemming from a specific injury (for which the law limits the compensation payable) operates concurrently with incapacity occasioned by a concurrent general injury to produce total and permanent disability, the injured workman is entitled to recover compensation benefits for total and permanent incapacity. Consolidated Underwriters v. Lowrie, 1939, Tex.Civ.App., Beaumont, 128 S.W.2d 421, error refused; Texas Employers' Ins. Ass'n v. Tanner, 1949, Tex.Civ.App., Amarillo, 218 S.W.2d 277, writ ref., n. r. e; Traders & General Ins. Co. v. Daniel, 1938, Tex.Civ.App., El Paso, 114 S.W.2d 336; Maryland Casualty Co. v. Mueller, 1922, Tex.Civ.App., Texarkana, 247...