Texas Employers Ins. Ass'n v. McKay

• Decision Date: 31 March 1948
• Docket Number: No. A-1513.,A-1513.
• Citation: 210 S.W.2d 147
• Parties: TEXAS EMPLOYERS INS. ASS'N v. McKAY.
• Court: Texas Supreme Court

210 S.W.2d 147

TEXAS EMPLOYERS INS. ASS'N v. McKAY.

No. A-1513.

Supreme Court of Texas.

March 31, 1948.

Rehearing Denied May 5, 1948.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit under the Workmen's Compensation Act by Thomas McKay, against Texas Employers Insurance Association, to set aside award of the Industrial Accident Board. A judgment for plaintiff was affirmed by Court of Civil Appeals, 205 S.W. 2d 833, and the defendant brings error.

Affirmed.

Underwood, Wilson, Sutton, Heare & Boyce and R. A. Wilson, all of Amarillo, for petitioner.

Merchant & Jordan, of Amarillo, for respondent.

GARWOOD, Justice.

This is a workmen's compensation case. The employee, McKay, respondent here, sued insurer Association, petitioner here, and was successful in both the trial court and Court of Civil Appeals. 205 S.W.2d 833. In this opinion we use the trial court designation of the parties. The injury asserted was a burning of plaintiff's hands by caustic fluid from a pump of his employer, Shamrock Oil & Gas Corporation. The pump was used for handling the caustic, and plaintiff, who was a mechanic's helper, came in contract with it while repairing the pump. While the caustic pumps with which plaintiff worked evidently dripped the fluid more or less constantly, there was no evidence that plaintiff's hands ever came in direct contact with it prior to July 20, 1945, at which time plaintiff testified that he got his hands wet with caustic, that shortly thereafter they began to sting and burn and red spots appeared on them; that this condition continued and developed despite applications of water and then vinegar at the time and other treatment thereafter until it eventually forced plaintiff to quit his job on January 28, 1946. It appears that some years before his employment with Shamrock Oil & Gas Corporation and while engaged in a different type of work, plaintiff had suffered from a skin disturbance on his hands diagnosed as allergic in character, and a principal defense in the instant case was that his disability arose from occupational disease rather than accidental injury. The facts were submitted to a jury, there being a separate group of issues as to each hand and a total of some twenty issues, all of which were answered in plaintiff's favor.

Defendant's principal complaint in this court is with respect to Special Issue No. 19, which reads as follows: "Do you find from a preponderance of the evidence, that any incapacity or loss of use of plaintiff's hands, if any, is due solely to disease that is not traceable to the injury sustained by him on July 20, 1945? Answer: `It is' or `It is not'." Defendant says that this issue, by its unconditional reference to an injury, improperly assumed affirmative answers to Special Issue No. 1 (a) and Special Issue No. 10(a) which enquired if plaintiff sustained such injury.

Speaking generally, the practice thus complained of has been condemned by the decisions in this state including Chicago, R. I. & G. Ry. Co. v. Hammond, Tex.Civ. App., 286 S.W. 483; Cannaday v. Martin, Tex.Civ.App., 69 S.W.2d 434, error dismissed; and Gordon v. McIntosh, Tex.Civ. App., 54 S.W.2d 177, cited by defendant. The Court of Civil Appeals avoided defendant's contention by holding that the evidence as a matter of law established accidental injury and thereby rendered harmless the vice in Special Issue No. 19. We find it unnecessary to review that holding, since we are satisfied from the very terms of the charge itself, considered as a whole, that the error in Special Issue No. 19 was not one which "* * * was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case * * *". Rule 434, Texas Rules of Civil Procedure. In fact, viewing the charge as a whole, we think it an unreasonable and quite unlikely conclusion that the jury was misled by Special Issue No. 19.

The rule evidenced by the above cited cases, while salutary and well established, is itself based upon a presumption,—that the jurors, despite being asked by the judge to determine for themselves whether a fact is so or not, will, because of the offending issue, infer that the same judge thinks his own question a mere formality. Such being the case, it is only common sense, in determining whether the offending issue was prejudicial, to consider its probable effect on the minds of the jury in the light of the charge as a whole. Russell v. Great American Indemnity Co., 127 Tex. 458, 94 S.W.2d 409. The above mentioned decisions cited by defendant do not block this line of approach.

Now, considering the charge as a whole, we note: first, rather elaborate preliminary admonition to the jury that it shall answer the issues upon the general instructions and the evidence and not otherwise; second, full definitions by the court by which the jury is to be guided in its determination of the issue of injury and the other issues submitted; third, Special Issue No. 1(a) enquiring whether claimant sustained injury to his right hand; fourth, Special Issue No. 10(a), enquiring whether claimant sustained injury to his left hand; fifth, the impressive fact that the words, "injury, if any", (italics ours) occur no less than fourteen separate times in twelve separate issues subsequent to No. 1(a) and prior to the offending Issue No. 19. These words, "injury, if any", occur seven times between No. 1(a) and No. 10(a) and seven times between No. 10(a) and the offending No. 19. In other words the trial judge painstakingly followed "injury" with "if any" fourteen times before he got to Special Issue No. 19. Sixth, in that issue the question of injury vel non is at most rather...