Texas Emp. Ins. Ass'n v. Smith
Decision Date | 12 December 1963 |
Docket Number | No. 6602,6602 |
Citation | 374 S.W.2d 287 |
Parties | TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Clyde SMITH, Appellee. |
Court | Texas Court of Appeals |
Keith, Mehaffy & Weber, Beaumont, for appellant.
Carl Waldman, Beaumont, for appellee.
This is a suit brought under the Workmen's Compensation Law of Texas. Plaintiff recovered judgment, based upon finding of the jury, for total and permanent disability. The parties will be referred to as they were in the trial court.
Defendant contends that there was no evidence to sustain the findings of the jury as to total and permanent disability, that there was insufficient evidence to sustain such findings, and that such findings were against the great weight and preponderance of the evidence. These contentions were raised by 5 separate points which were then briefed and argued together. The defendant treats the legal import of each as being identical to the other, and actually only asks this court to consider the record as a whole and to remand the case for a new trial. The defendant, in effect, abandons the point of 'no evidence' and relies solely on the points of 'insufficient evidence' and 'against the great weight and preponderance of the evidence'.
A consideration of these points necessarily requires a review of the testimony of the witnesses as to the physical condition of the plaintiff. The record shows that plaintiff was injured November 22, 1957. The fact that plaintiff received a serious injury is not controverted. The defendant furnished plaintiff an operation to repair a herniated disc February 25, 1958. Plaintiff returned to work May 12, 1958, and has continued to work for the same employer to the date of the trial, May 22, 1962. That plaintiff was at all material times employed as a vat operator which is a job requiring claimbing and walking. That plaintiff's wage rate was $3.03 per hour on the date of the injury, and $3.33 per hour at the time of trial. Plaintiff had been working 40 hours per week at both times. There is no evidence that plaintiff lost any time from word because of this back injury in 1959, 1960, 1961, or 1962 to the date of trial. Defendant offered evidence that plaintiff was able to do his work as a vat operator, and had been doing it, without complaint. Dr. Earl Rafes, a witness called by defendant, testified as follows:
In reference to a myelogram taken by Dr. Tyner December 16, 1960 he testified:
'* * * In my opinion, this myelogram does not represent in any way a hereination of the disk, but merely represents a thickening of the annulus or covering which the disk had originally, and you see the disk is entered not from here, but from the sides, so this covering remains, or and it represents a little thickening of the edge of the bone in this area and does not represent a herniated disk.'
'
On the other hand, the plaintiff testified he had a wife and five children, and as follows:
'
'
'
'
'
'Q. Clyde, which man told you to do what that you couldn't do?
'
Dr. Furman H. Tyner, a witness called by plaintiff, testified he was a radiologist, and took a myelogram of plaintiff's back December 16, 1960, and as follows:
Dr. James Albert Brown, a doctor called by plaintiff testified as follows:
...
To continue reading
Request your trial-
Texas Employers' Insurance Association v. Chappell
...judg. corr.); Liberty Mutual Insurance Company v. Parrish, 469 S.W.2d 620 (Tex.Civ.App.--Waco 1971, n.w.h.); Texas Employers Insurance Association v. Smith, 374 S.W.2d 287 (Tex.Civ.App.--Beaumont 1963, n.w.h.). Any doubt as to whether the evidence supports the jury finding of total and perm......
-
Trinity Universal Ins. Co. v. Farley, 235
...will be affirmed. Traders & General Ins. Co. v . Daniel, (Tex.Civ.App.) 131 S.W.2d 276, dism., judg. cor.; Texas Employers Insurance Ass'n v. Smith, 374 S.W.2d 287, (Tex.Civ.App.) 1964, n.w.h.; Connecticut Indemnity Company v. Henson, Tex.Civ.App., 388 S.W.2d 300, n.w.h. The duration and ex......
-
Texas Emp. Ins. Ass'n v. Critz
...340 S.W.2d 482 (Tex.1960), opinion on remand, 343 S.W.2d 545 (Tex.Civ.App. Austin 1961, writ ref'd n.r.e.); Texas Employers Insurance Association v. Smith, 374 S.W.2d 287 (Tex.Civ.App. Beaumont 1963, no writ). In Gill v. Transamerica Ins. Co., the trial court refused to submit a definition ......
-
Texas Employers' Insurance Ass'n v. Washington, 17228
...This general rule is announced in 63 Tex.Jur.2d, § 429, p. 455, and followed in many cases, such as Texas Employers Ins. Ass'n v. Smith, 374 S.W.2d 287 (Tex.Civ.App., Beaumont 1963); Fidelity & Cas. Co. of New York v. Moore, 333 S.W.2d 956 (Tex.Civ.App., Fort Worth 1960); Connecticut Indemn......