Texas Employers' Ins. Ass'n v. Davidson

• Decision Date: 19 June 1926
• Docket Number: (No. 11608.)
• Citation: 288 S.W. 471
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. DAVIDSON et al.
• Court: Texas Court of Appeals

Page 471

288 S.W. 471

TEXAS EMPLOYERS' INS. ASS'N v. DAVIDSON et al.

(No. 11608.)

Court of Civil Appeals of Texas. Fort Worth.

June 19, 1926.

Rehearing Denied October 16, 1926.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by T. L. Davidson and others against the Texas Employers' Insurance Association, to set aside an award of the Industrial Accident Board, and recover compensation under provisions of the Workmen's Compensation Act. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Lawther, Pope, Leachman & Lawther, of Dallas, for appellant.

Engleking & Dotson, of Electra, for appellees.

BUCK, J.

This was a suit by appellee T. L. Davidson in the district court of Wichita county, to set aside an award of the Industrial Accident Board and recover compensation under the provisions of the Workmen's Compensation Act. Appellee claimed to have been injured in the employment of the American Refining Company and while helping to carry some joints of pipe. In his petition he alleged that his muscles and tendons in his side, back, and body were strained, and that a tendon or muscle in his side was broken; that his side, back, and lungs were greatly injured by reason of lifting said joint of pipe; that a tumor was caused to form on plaintiff's side, as a reason of which his health was broken and he was rendered unable to work; that he suffered pain in his sides and body and in his lungs, etc. Appellant answered by a general demurrer and certain special exceptions and a general denial. The cause was submitted to a jury upon special issues, and such issues and the answers thereto are as follows:

"Special issue No. 1: Did the plaintiff T. L. Davidson sustain personal injury on the 13th day of April, 1924? Answer: Yes.

"Special issue No. 2: If you answer the foregoing issue `yes,' then answer the following: Were the injuries sustained by said Davidson in the course of his employment? Answer: Yes.

"Special issue No. 3: If you have answered each of the foregoing issues `yes,' then did such injury result in the permanent total incapacity of said T. L. Davidson? Answer: Yes."

The following special issues were given at the request of the defendant:

"(a) Is the physical condition of the plaintiff as same now exists, the result of a previous condition existing in the physical condition of plaintiff, prior to the time that he was injured, if he was injured? Answer: No.

"(b) What was the average weekly [wages] of the defendant [plaintiff] for the year next proceeding [preceding] his injury. Answer as you find the facts to be, and, in this connection, you are instructed that the average weekly wage that you find above means that if the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wage consist of 300 times the average daily wage or salary which he shall have earned in such employment during the days when so employed; second, if the injured employee shall not have worked in such employment during substantially the whole year, his average annual wages shall consist of 300 times the average daily wages or salary which an employee of the same class, working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the dates when so employed. Answer: $31.50."

At the special request of the plaintiff, the court instructed the jury as follows:

"You are charged that in case you are unable to ascertain the average daily wage which was earned by an employee of the same class as the said T. L. Davidson working substantially the whole of the immediately preceding year to the 13th day of April, 1925, [4] you may compute the average daily wage of the said T. L. Davidson in any manner that may seem just and fair. What sum of money do you designate as the average daily wage of the plaintiff which to you may seem just and fair to both plaintiff and defendant? Answer, stating the amount. Answer: $4.50."

Upon the request of plaintiff, the court further submitted the following special issue, with instructions:

"You are charged that in case yau are unable to ascertain the average daily wage which was earned by an employee of the same class as the said T. L. Davidson working substantially the whole of the immediately preceding year to the 13th day of April, 1925, [4] you may compute the average daily wage of the said T. L. Davidson in any manner that may seem just and fair. What sum of money do you designate as the average daily wage of the plaintiff which to you may seem just and fair to both plaintiff and defendant? Answer, stating the amount. Answer: $4.50."

Upon the request of the defendant, the following special issue was submitted:

"Did the plaintiff T. L. Davidson suffer partial incapacity by injuries received, if any, on April 13, 1924, while in the employ of the American Refining Company. Answer: No; plaintiff was totally disabled."

Upon the answers of the jury, the court rendered judgment for plaintiff for $15.57 a week for a term of 401 weeks, making a total compensation for his injuries of the sum of $6,243.57, less a credit of $31.50, which was paid by the defendant to the plaintiff, leaving yet unpaid the sum of $6,212.07. It further appearing to the court that 63 of said weekly installments of compensation had matured at the time of the trial, judgment for said amount, or $980.91, less $31.50 already paid, leaving $949.41 then due, was rendered for plaintiff against defendant. Judgment for 338 weekly installments of $15.57 was awarded plaintiff against defendant. One-third of the amount awarded plaintiff was ordered to be paid to his attorneys. From this judgment the defendant has appealed.

Opinion.

Under its first assignment, the appellant urges that, to be compensable under the Workmen's Compensation Act, the injury to the employee must be a damage or harm to the physical structure of the body and such disease or infection as naturally results therefrom. He urges that the evidence does not show that any injury to the structure of the body was suffered by appellee in the course of his employment, and that, therefore, any judgment against the appellant was not authorized. The Employer's Liability Act, as amended by the 35th Legislature (1917) c. 103, pt. 4, § 1, subd. 5, says:

"The words `injury' or `personal injury,' as used in this act, shall be construed to mean damage or harm to the physical structure of the body and such disease or infection as naturally results therefrom."

The evidence tends to show in this case that, while appellant was at work helping to lift and carry a line of pipe from one place to another, he experienced severe pains on each side and in his chest; that the pains were very severe, and he was forced to lie down and rest that afternoon; that these pains have continued since said time until the day of the trial, at least when he was standing up or attempting to do any work; that, when he was lying down, or in the morning when he got up, he often felt all right, but, when he attempted to work or to exert himself in any way, the pains returned. We think that this testimony is sufficient to show circumstantially that, by the lifting, some disarrangement of some of the organs or some lesion occurred, which caused the pain suffered. The pains are only the evidence of the cause producing them.

There are several assignments of error directed to the admission of certain testimony of witnesses to whom it is claimed the appellee made statements concerning pain suffered by him after the injury. This evidence objected to, and the witnesses who testified, the questions asked the witnesses, and the answers thereto, are hereinafter stated:

Mrs. Rosa Pryor, at whose house appellee roomed at the time of the injury, was asked: "Did you ever hear him complain of pains in his body or chest or anything like that?" The witness answered: "He said his side pained him and complained lots of times with his side." E. D. Pryor, the brother-in-law of the last witness, was asked: "State whether or not at that time he complained of having pains in his side, or chest or anything like that." The witness answered: "I don't remember what he said, only he complained his side was hurting." Witness C. H. Mowery was asked: "What has he said with reference to being unable to work?" He answered: "He complained with his side hurting around this way and of being overdone." Witness D. Armstrong was asked: "State whether or not you have heard him make any complaint of physical pain, or his health, or anything of that kind since April, 1924." Witness answered: "Well, last fall, when he came up there to my place, he was complaining of his side." W. A. Beck, who was a barber, was asked: "Just tell the jury whether or not he ever complained of pain, bodily pain, or anything like that the times he has been in your shop since April 13, 1924." He answered: "Yes." Question: "What did he say with reference to it? Just tell the jury all about it." The witness answered: "When I would go to lay the chair back he would often tell me to be careful. It would hurt his side or something like that." I. James was asked: "Tell the jury whether or not he complained of any pains in his side or anything like that." Answer: "Yes, sir; he did." Question: "What did he say with reference to it?" Answer: "He just said he thought there was something pulled loose in his side." Question: "State whether he made any complaints with reference to his health or pains during all that time." Answer: "Yes, sir; he did."

Ordinarily, expressions of pain are admissible to show the existence of said pain, whether such expressions are merely explanations, groans, or verbal statements, upon the theory that they are but involuntary...