Texas Employers' Ins. Ass'n v. Davidson

• Decision Date: 14 March 1928
• Docket Number: (No. 3001.)
• Citation: 5 S.W.2d 1008
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. DAVIDSON et al.
• Court: Texas Court of Appeals

5 S.W.2d 1008

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

(No. 3001.)

Court of Civil Appeals of Texas. Amarillo.

March 14, 1928.

Rehearing Denied April 10, 1928.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Suit by T. L. Davidson and others against the Texas Employers' Insurance Association to set aside an order of the Industrial Accident Board refusing plaintiff compensation under the Workmen's Compensation Law for an alleged injury. Judgment for plaintiffs, and defendant appeals. Affirmed.

See, also, 288 S. W. 471; 290 S. W. 871.

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

Engelking & Dotson, of Electra, and Sam J. Dotson, of Vernon, for appellees.

JACKSON, J.

This suit was instituted in the district court of Wichita county, Tex., by T. L. Davidson to set aside an order of the Industrial Accident Board refusing him compensation for an alleged injury, and to recover against the appellant, the Texas Employers' Insurance Association, under the Workmen's Compensation Law (Vernon's Ann. Civ. St. 1925, arts. 8306-8309) of this state.

T. L. Davidson alleges that on April 13, 1924, he was, and had been for some time, employed in the capacity of a common laborer by the American Refining Company, which carried compensation insurance, for the protection of its employees, with the Texas Employers' Insurance Association, the appellant herein; that in the course of his employment, while assisting to lift and carry a joint of pipe of great weight, he was injured; that the muscles and tendons in his side, back, and body were strained, and a tendon or muscle in his side broken; that his side, back, and lungs were injured by reason of lifting the joint of pipe, a tumor was caused to form on his side, and, as a result of his injuries, his health was broken and impaired, and he was rendered unable to work and continually suffered pain in his sides, body and lungs.

The appellant answered by general and special demurrers and a general denial.

No question is presented relative to the sufficiency of the pleadings, and the above we deem sufficient for a disposition of the errors assigned.

This is the second appeal of the case; the former appeal having been decided by the court of Civil Appeals at Fort Worth, and reported in 288 S. W. 471.

The court, in connection with the special issues submitted, gave special charges in explanation thereof to which no objection is made, and the jury, in response to the special issues, found, in effect, that T. L. Davidson sustained personal injuries on April 13, 1924, while in the course of his employment with the American Refining Company; that he was incapacitated for labor as the proximate result of the injury for a period of 156 weeks; that such incapacity was total and temporary, and that he should receive compensation on account of his partial incapacity for a period of 156 weeks; that his average daily wages were $4.50; and that manifest injustice and hardship would result unless Davidson was given a lump sum settlement.

On this verdict, the court rendered judgment against the appellant for the sum of $2,615.65, with interest thereon at the rate of 6 per cent. per annum, from which judgment this appeal is prosecuted.

The appellant, by numerous assignments, which we shall consider together, assails as error the action of the court in rendering judgment against it, for the reason that the testimony in the record failed to show any damage or harm to the physical structure of the body of T. L. Davidson as a result of the injury he claimed to have suffered, and because there was no testimony showing any casual connection between the transaction in which Davidson claims to have received his injury and his subsequent incapacity for work.

The testimony tends to show that, prior to the alleged injury, appellee Davidson, who was approximately 50 years old, had always enjoyed good health, had always been able to and had performed manual labor all his life, and for approximately a year immediately preceding the injury he had been engaged in the same or...