Texas Employers Ins. Ass'n v. Griffis
| Decision Date | 30 May 1940 |
| Docket Number | No. 11038.,11038. |
| Citation | 141 S.W.2d 687 |
| Parties | TEXAS EMPLOYERS INS. ASS'N v. GRIFFIS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lamar County; Newman Phillips, Judge.
Suit under the Workmen's Compensation Act by Thomas R. Griffis, compensation claimant, against the Texas Employers Insurance Association, to set aside an award of the Industrial Accident Board in favor of the Texas Employers Insurance Association. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
Wheeler, Atchley & Vance, of Texarkana, for appellant.
Caldwell, Baker & Jordon, of Dallas, for appellee.
This is a workmen's compensation case, which was tried in the district court of Lamar County, and has been by an equalization order of the Supreme Court transferred to this court, and, under our rules, advanced for submission.
The suit was instituted by appellee against appellant to recover for total permanent disability as a result of an injury to the back alleged to have occurred on December 20, 1938, while appellee was working for Cummer-Graham Company, his employer, in attempting to lift a piece of concrete which weighed approximately 120 pounds; appellee alleged that while he was exerting all his strength his back was severely strained, and he was caused to suffer an injury as a result thereof that totally and permanently disabled him; and prayed for a lump sum judgment. Appellant filed a formal answer; specially denying certain jurisdictional matters, denying under oath that either the Insurance Company or the Employer were notified or had actual knowledge of the appellee's accident or injury within the thirty days required by law.
The court refused appellant's motion for an instructed verdict; the jury found:
Answer: "Yes."
Answer: "Yes."
Answer: "Yes."
Answer: "Yes."
Answer: "No."
Answer: "No."
Answer: "Such injury or injuries has not contributed to the incapacity following December 20th, 1938."
Answer: "100 per cent."
Answer: "Yes."
Answer: "Yes."
Answer: "Yes."
Answer: "Yes."
Answer: "Yes."
Answer: "Yes."
Answer: "Yes".
Upon the findings of the jury, the court entered judgment for appellee for compensation for total permanent disability; and ordered a lump sum payment.
Appellant contends that, since appellee admitted that he had suffered back injuries on March 4, 1935, and on January 5, 1938, and on May 9, 1938, on which he drew compensation, that it was error for the court:
(a) To permit appellee to testify that at the time he went back to work for Cummer-Graham Company in 1938, he had fully recovered from those injuries, over appellant's objection that such testimony involved an expert opinion on his own physical condition, which appellee was not qualified as an expert to give.
(b) To permit appellee's counsel to ask appellee's witness, Dr. Spell: "That occurrence on the 20th day of December, 1938, Could that reasonably and probably account for the condition that you found in Mr. Griffis (appellee) when you examined him on the 23rd day of December?" over appellant's objection that the question was for an opinion based on possibilities rather than probabilities, and was therefore speculative, and permitted the witness to answer: "Under normal conditions the injury at that time could account for all his troubles."
(c) To submit to the jury Special Issue No. 3, inquiring if appellee sustained total incapacity on account of the injuries sustained by him on December 20, 1938, over the evidence of Dr. Spell that the total incapacity complained of by appellee was to some degree contributed to by the prior injuries received by appellee, and the jury could not answer in the affirmative without going against such evidence (which appellant states is undisputed).
We overrule this contention, and appellant's assignment based thereon. Appellee testified to receiving an injury in January, 1938, and going back to work in about a month, on February 11, 1938, and worked until the factory shut down in July, 1938; and that he received another injury in May, 1938, and was treated by Dr. Spell, the company's doctor, until June 28, 1938, when he was dismissed as well, and lost no time on account of that injury. That he went to work for the Coca Cola Bottling Works in September, 1938. That when he worked for the Coca Cola Company he was in perfect condition; that he got about in a normal manner; that he carried sugar, the sacks weighing 100 pounds, as his main work at the Coca Cola Company; that he rested perfectly at night, and had no pain in his back. That he returned to work for Cummer-Graham Company on November 1, 1938, helping repair the mill; helped to level the ground, and put in a tram, and that nearly all this work was lifting, and that it did not affect him. We will not burden the record with appellee's testimony relating to the character of work he did after he had received his injury in 1935. We know of no reason why appellee could not testify that he had fully recovered. Certainly the cases relied on by appellant are not...
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