Texas Employers' Ins. Ass'n v. Mallard

• Citation: 180 S.W.2d 381
• Decision Date: 03 May 1944
• Docket Number: No. 11625.,11625.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. MALLARD.
• Court: Texas Court of Appeals

180 S.W.2d 381

TEXAS EMPLOYERS' INS. ASS'N v. MALLARD.

No. 11625.

Court of Civil Appeals of Texas. Galveston.

May 3, 1944.

Rehearing Denied May 18, 1944.

Appeal from District Court, Fifty-Fifth District, Harris County; Ewing Boyd, Judge.

Suit under Workmen's Compensation Act by W. E. Mallard, claimant, against the Texas Employers' Insurance Association, insurance carrier, for total permanent disability compensation. From a judgment granting an award to the claimant, the insurance carrier appeals.

Affirmed.

Sewell, Taylor, Morris & McGregor, of Houston, for appellant.

Evan W. Burris, of Houston (Burris & Benton, of Houston, of counsel), for appellee.

GRAVES, Justice.

This appeal—in a compensation case—is from a $6438.49 lump-sum judgment in favor of appellee against appellant, as for the unpaid portion of compensation for a full period of 401 weeks, at the rate of $20 per week, for total incapacity, entered by the 55th District Court of Harris County, in part each upon a jury's findings on special issues submitted, the stipulations of the parties, and independent findings of the court itself from the record and evidence.

The stipulations were to the effect that, if the appellee showed himself entitled to recover for total and permanent disability, the rate of compensation should be $20 per week, and the whole should be paid in a lump sum.

The jury's findings in response to special issues Nos. 1 and 3 were that the appellee had suffered total and permanent incapacity from the injuries sued upon, and that he had not, nor would he, "suffer any partial incapacity to work as a result of the injuries, if any, sustained by him on August 25th, 1941, while in the employ of Tellepsen Construction Company."

It thus resulted that the only question of fact left to and determined by the jury was the extent and duration of the appellee's incapacity.

Appellant's points of error for a reversal are, in his verbis, these:

"1. The error of the court in defining the term `total incapacity' in his charge to the jury as `such disability as disqualifies a person from performing the usual tasks of a workman in such a way as to prevent him from procuring and retaining employment in the usual occupation which he is suited to perform.'

"2. The error of the court in permitting the plaintiff to testify on direct examination, over defendant's objection, that such was hearsay evidence, that Dr. E. M. Cowart, who had been treating him for the insurance company, had permitted him to go back to work `at light duty'.

"3. The error of the court in failing to sustain defendant's timely objection to the unjustified and prejudicial argument of Evan Burris, plaintiff's attorney, in his closing remarks to the jury, as reflected in Defendant's Bill of Exception No. One."

None of these presentments, it is determined, in the state of this record, should be sustained.

It is true that the court in his charge to the jury defined "total incapacity" in the language used in appellant's first point, without, however, the italicizing it has added for emphasis to the conclusion thereof; but it also, in immediate sequence thereto, thus defined partial incapacity:

"By the term `partial incapacity', as used in this charge, is meant that a person is disqualified from performing the usual tasks of a workman, but is capable of performing part of such usual tasks, or labor of a less remunerative class, whereby a reduction in earning capacity is suffered."

It then submitted both these issues to the jury, inquiring as to the first merely whether "the total incapacity, if any suffered by plaintiff, W. E. Mallard, is permanent, or was or will be temporary", and as to the second one, this:

"Do you find from a preponderance of the evidence that the plaintiff, W. E. Mallard, has suffered, or will suffer, any partial incapacity to work as a result of the injuries, if any, sustained by him on August 25th, 1941, while in the employ of Tellepsen Construction Company?"

The jury answered that the appellee's incapacity was total and permanent, and that he neither had suffered nor would suffer any partial incapacity.

In connection with whether he had suffered any partial incapacity, the court literally cross-examined the jury in some seven inquires as to every conceivable detail of any partial incapacity he might have suffered, directing it, however, to answer none of these extended specifications, in event they should first find he had suffered no partial disability.

As its quoted points imply, appellant makes no contention that the evidence failed to support any of the stated findings of either court or jury, so that such findings of both must be here regarded as reflecting the established facts.

Whatever inaccuracy of recitation there may be in the court's challenged definition of total incapacity, or in that of this court in its opinion in Texas Employers Ins. Ass'n v. Hitt, Tex.Civ.App., 125 S.W.2d 323, which appellant criticizes, it is not thought that—in the attending circumstances here—it amounted to such a denial of the rights of the appellant as were reasonably calculated to cause, and probably did cause, the rendition of an improper judgment herein, for these among other considerations:

(1) Appellant, at the time the court delivered it, did not tender a different or corrective definition, which the new rules seem to require in such circumstances. Wells Fargo & Co. Express v. Keeler, Tex. Civ.App., 173 S.W. 926; Franki's Vernon's Texas Rules of Civil Procedure, at page 295; Rule 279, Texas Rules of Civil Procedure.

(2) Whatever departure, if any, from correct form the italicized and criticized phrase in the trial court's definition of total incapacity may have constituted, that did not inhere in its fully-quoted definition of partial incapacity, which contained no such appendage; nor is it here complained of by the appellant.

(3) Whatever appellant's attitude toward it may have been, the issue of partial incapacity was thus emphasized by the trial court in all the referred-to details, which the jury read and considered necessarily in properly observing the court's charge; it, therefore, does not seem to reasonably appear that any improper judgment resulted from the challenged expression in the definition of total incapacity; especially since the jury, with all the lights before it, made the unequivocal finding, on what must be deemed sufficient evidence, that no sort of partial incapacity of whatever character had occurred.

Appellant's second point...