Texas Employers Ins. Ass'n v. Hevolow

• Decision Date: 11 January 1940
• Docket Number: No. 3870.,3870.
• Citation: 136 S.W.2d 931
• Parties: TEXAS EMPLOYERS INS. ASS'N v. HEVOLOW.
• Court: Texas Court of Appeals

136 S.W.2d 931

TEXAS EMPLOYERS INS. ASS'N v. HEVOLOW.

No. 3870.

Court of Civil Appeals of Texas. El Paso.

January 11, 1940.

Rehearing Denied February 8, 1940.

Appeal from District Court, Bowie County; N. L. Dalby, Judge.

Proceeding under the Workmen's Compensation Act by Green B. Hevolow, claimant, opposed by the Texas Employers Insurance Association. From an unsatisfactory judgment, the Texas Employers Insurance Association appeals.

Affirmed.

Atchley & Vance, of Texarkana, for appellant.

Wm. V. Brown, of Texarkana, for appellee.

PRICE, Chief Justice.

This is an appeal from the District Court of Bowie County in a workman's compensation case. The claimant, Green B. Hevolow, hereinafter called plaintiff, recovered compensation in a lump sum against Texas Employers Insurance Association, hereinafter called defendant. The amount of the judgment was $3,205.25. The judgment was based on a compensation rate of $9.44 per week and there was a credit thereon for amounts already paid. Defendant duly perfected appeal from such judgment. The trial was before a jury on special issues. The verdict, insofar as pertinent here, was as follows: Plaintiff, by his injury, sustained total incapacity on or about December 7, 1937; such incapacity was permanent; in favor of a lump sum settlement; against partial incapacity. The finding as to average weekly wage was set aside by the court on motion of the defendant, and judgment was entered in that respect in accordance with the motion of defendant. No point is made by either party as to such action of the court.

The proper disposition of this case depends on the correct determination of four points: (1) Was there sufficient evidence to justify the finding by the jury of permanent total disability; (2) was there evidence raising the issue of specific injury to the leg; (3) if there was an issue as to specific injury to the leg only, did the defendant make request for the submission in proper form; (4) did the court commit error, that is, reversible error, in admitting in evidence, over the timely objection of the defendant, testimony as to the temperature of the room or building in which plaintiff worked and its effect upon him.

The first point is sufficiently raised by defendant in various exceptions and objections. To a proper discussion of this matter a synopsis of the evidence is perhaps essential.

The case was submitted on the evidence adduced by the plaintiff. It was shown that plaintiff, on December 6, 1937, in the course of his employment, was carrying a drum weighing from 150 to 200 pounds and fell head first down a stairway consisting of thirteen steps leading, without turn or curve, straight down to the first floor. The drum rolled on his body, and his left leg was broken between the knee and ankle. The trial herein was held on October 12, 1938, and from December 6, 1937, to the date of the trial plaintiff has suffered continuous pain in his knee, ankle, foot and back; his leg hurt him when he walked, and if he sat down after walking his hips hurt him; if he did any considerable walking his foot and ankle swelled; he was unable to stoop over and pick anything up because it hurt his hips and back; in order to relieve the pain in his leg and back frequent hot applications were made; his leg was in a cast for many weeks after the accident. At the time of the accident he was a healthy, robust man, fifty-two years old. He had not done any work up to the date of the trial.

The above facts as to plaintiff's injury and the effects thereof certainly reasonably warrant the inference on the part of the jury that plaintiff's disability was total up to the date of the trial, and that such condition would continue for a time at least thereafter. From the nature of the accident and the pain in the back and hips persisting for more than ten months the jury might reasonably infer injuries other than to the leg. It does not occur to us that there is any necessary connection between the broken leg and the pain in the back. However, the real question is not what we might have found as to the accident and duration of plaintiff's injuries, but whether the facts were such as reasonably justified the jury in making the finding that same were total and permanent. There are injuries to the back and spine that are inferred from their effect alone. Even with the modern methods of diagnosis there are serious injuries and conditions that defy objective demonstration. The record shows that medical testimony was perhaps readily available to both plaintiff and defendant, and that neither elected to introduce same.

Ten months is a long time for pain and disability to persist from a broken leg. Ten months is a long time for acute pain to persist in the back. The accident was one of grave violence. Under the evidence plaintiff limps and walks with a cane. We are unwilling to hold that under the evidence as to the character of the accident, the injuries inflicted, the persistency of their effects, the jury were not reasonably justified in finding total and permanent disability.

The jury may find as to these matters unaided by expert medical testimony. Davies v. Texas Employers' Ass'n, Tex. Com.App., 29 S.W.2d 987; Texas Employers' Ins. Ass'n v. Moore, Tex.Civ.App., 279 S.W. 516; Texas Indemnity Ins. Co. v. Preslar, Tex.Civ.App., 298 S.W. 666; Texas Employers' Ins. Ass'n v. Scott, Tex.Civ. App., 46 S.W.2d 348; Texas Employers' Ins. Ass'n v. Burnett, Tex.Civ.App., 52 S. W.2d 771.

The assignments as to the insufficiency of the evidence are overruled.

The question of whether or not the issue as to specific injury was raised depends upon the pleading and the evidence. Plaintiff's pleading tendered the issue of general injury resulting from the accident. It was perhaps sufficient to warrant a recovery for a specific injury to the leg. Defendant relies upon its general denial to raise the issue. We think the issue of specific injury was raised by the general denial.

There would seem to be no vital difference in principle between the issue of partial incapacity and specific injury in the matter here in question. Plaintiff pleads the injury to the leg and to other portions of his body, the general denial would certainly support proof that the leg only was injured.

In the opinion of the writer the issue of a specific injury was raised. The only objective injury to plaintiff was a broken leg. For the establishment of the effects of this injury and to injuries to other...