Texas General Indem. Co. v. Bledsoe, 13693

• Decision Date: 23 February 1961
• Docket Number: No. 13693,13693
• Citation: 344 S.W.2d 527
• Parties: TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Glynn E. BLEDSOE, Appellee.
• Court: Texas Court of Appeals

Page 527

344 S.W.2d 527

TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Glynn E. BLEDSOE, Appellee.

No. 13693.

Court of Civil Appeals of Texas, San Antonio.

Feb. 23, 1961.

Rehearing Denied March 22, 1961.

Cox, Wilson & Kennedy, Brownsville, Robinson, Strawn & Robinson, Raymondville, Chas. L. Cartwright, Houston, for appellant.

Hill, Brown, Kronzer & Abraham, Houston, for appellee.

MURRAY, Chief Justice.

This is a Workmen's Compensation case. The jury found that appellee, Glynn E. Bledsoe, while in the course and scope of his employment for Pan American Petroleum Corporation, on or about March 28, 1958, sustained an injury to his back, and that as a result of such injury appellee suffered permanent total incapacity. The trial court rendered judgment in keeping with the verdict of the jury, in favor of appellee and against appellant, Texas General Indeminity Company, in the sum of $12,916, with interest, and with one-fourth set aside for appellee's attorneys.

The material findings of the jury, in substance, are as follows:

(1) That Glynn E. Bledsoe sustained an injury in the course of his employment for Pan American Petroleum Corporation on or about March 28, 1958.

(2) That such injury was a producing cause of his incapacity which arose on March 28, 1958, and was total and permanent.

(3) That payment to Glynn E. Bledsoe in weekly installments instead of a lump sum will result in manifest hardship or injustice to him.

(4) That none of the incapacity of Glynn E. Bledsoe is solely the result o an injury, ailment or disease existing prior to March 28, 1958.

These findings are ordinarily binding upon the parties and are sufficient basis for the judgment rendered by the court if there is sufficient evidence of probative force to support such findings. Appellant has presented fifty-three assignments of error, covering some twenty pages of its brief. In this connection we call appellant's attention to Rule 418, Texas Rules of Civil Procedure, reading in part as follows:

'The brief for appellant should contain * * *

'(b) A statement of the points upon which the appeal is predicated, separately numbered in short form and without argument, and germane to one or more assignments of error when assignments are required. Such points will be sufficient if they direct the attention of the court to the error relied upon and they should ordinarily be so concisely stated that they may appear, separately numbered, on a single page of the brief. Assignments of error need not be copied in the brief, and may be cited by reference only.'

Appellant evidently deemed it necessary to 'box in' its points by stating them in numerous ways and from many standpoints, for fear this Court might hold that the points did not properly present its contentions. At one time this was the practice, but under the present court rules and the liberal interpretation given points by the Courts under the provisions of Rule 422, T.R.C.P., this practice is no longer a proper one. To discuss each point presented would unduly extend this opinion. We will endeavor to pick out the real contentions presented by appellant and confine our opinion to such contentions.

Appellant has divided its brief into nine sections and we will discuss each section separately.

Section I presents three contentions. First, that there is no evidence to support the jury finding that appellee sustained an injury to his back on or about March 28, 1958, while working in the course of his employment with Pan American Petroleum Corporation; second, that the finding of the jury that appellee sustained such injury is contrary to the great weight and preponderance of the evidence; and, third, that the finding of the jury that appellee sustained such injury in the course of his employment is contrary to the great weight and preponderance of the evidence. As to the first contention, appellee testified that on or about March 28, 1958, in the course of his employment, and while working with four or five other men in the construction of a cattle guard for Pan American, he picked up a sill to throw it in the hole for the cattle guard and threw a 'kink' in his back. That he suffered great pain, and it felt like a bone was out of place, but that he did not make any outcry at the time or mention it to the other workmen, because he had recently transferred from the Old Ocean Field to the Willamar Field and was not acquainted with his foreman and the men with whom he was working, and was afraid that if he complained of the injury he might lose his job. The next day he did tell one of the workmen, Eugene Peoples, that he had injury his back the day before. He managed to work from 2:00 p. m. on March 28, 1958, until quitting time, and he was able to work the next day, by 'being carried' by one of the workmen. However, by the following Monday, his back was hurting him so badly that he had to go to his foreman, one Red Calvert, and report that he was unable to do the work of a roustabout, whereupon he was taken to his supervisors and placed upon light work, and later he was discharged from his job. This evidence, in itself, is evidence of probative force from which the jury might find that he did sustain an injury to his back on or about March 28, 1958. Texas Van Lines Inc. v. Godfrey, Tex.Civ.App., 313 S.W.2d 922.

Appellant's next two complaints present the contention that the findings of the jury, to the effect, that appellee did sustain an injury is contrary to the weight and preponderance of the evidence, and that the finding that he received such injury in the scope of his employment is also contrary to the weight and preponderance of the evidence. Of course, the weight and preponderance of the evidence is a matter that was addressed to the discretion of the jury in this case, and not to this Court. These points, as stated, present nothing for review here. But we assume that appellant intended to present the contention that the finding of the jury as to the injury and as to the scope of employment was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust, and this would present points which we do have jurisdiction to consider. To pass upon this matter we must consider all of the evidence. King v. King, 150 Tex. 662, 244 S.W.2d 660; 30 Tex.L.Rev. 803.

It is shown that appellee had worked for the same people or organization for some twelve or thirteen years, however, such organization had changed its name several times, and is now known as Pan American Petroleum Corporation. Appellee had worked for the same employer at the Old Ocean Field, and a short time before the date of his injury he was transferred to the Willamar Field, located in Willacy County, several hundred miles from the Ocean Field. He was doing manual labor at the Old Ocean Field, under the classification of roustabout-pumper, and went to work at the Willamar Field under the designation of roustabout. He had been assigned to work with other men in building a cattle guard, and had worked only about a day and a half when he received his back injury. Appellant contends appellee is not to be believed in his statement about his injury because he has given three different versions of how it occurred. We see no particular difference in these three statements, which are as follows: 'I picked up a sill to build a cattle guard to throw it in the hole and threw a kink in my back.' 'Installed cattle guard in Willamar Field, strained back while lifting a sill for same.' 'At this particular time it was my understanding that Glynn Bledsoe (appellee) had claimed that lifting a sill as a part of this cattle guard, he had hurt his back.' Appellant contends that in the first statement appellee claimed that he wrenched his back by throwing the sill in the hole. But that is not what he said; he said, in effect, that he hurt his back while picking up the sill for the purpose of throwing it in the hole. The second statement is to the effect that he injured his back while lifting a sill. And the third statement says that he injured his back while leaning over and picking up the sill. We conclude that there is no real discrepancy in these statements.

It is true that appellee did not cry out or say anything to the men working with him about having hurt his back. He did tell one of the men the following day that he had hurt his back. Though the injury occurred at 2:00 p. m., he continued to work until quitting time without the foreman finding it out. He did work the following day, but he contended that he did so only by reason of the fact that one of the men was 'carrying him.' He did not file an official claim report until April 22, 1958. Before he filed any complaint, he went to Houston and consulted and was examined by Dr. Brodsky, a doctor of his own choice, though he undoubtedly knew that he could go to a company doctor. He explained his conduct by saying that he was afraid he might lose his job if he complained of the injury. Shortly thereafter he was discharged for being unable to perform the duties of a roustabout. Other men were laid off at the same time.

The evidence shows that appellee received an injury to his hips when a boy, fourteen years of age, while playing basket ball. That he had injured his back on two or three other occasions, but was laid up for not more than four days at any one time. These were not compensable injuries. He was examined by Dr. Barnes, the company's physician, who learned from X-rays that appellee had arthritis in his back, and that such condition had existed for quite some time. However, he had a very good record for steady work at manual labor for the twelve or thirteen years that he had been with the same people. There was no attempt to deny the fact that he had degenerative arthritis in his back, and this suit was brought for aggravation of this condition, caused by the injury to his back on March 28, 1958. We are unable to say that the findings of...