Traders and General Ins. Co. v. Rockey

• Citation: 278 S.W.2d 490
• Decision Date: 17 January 1955
• Docket Number: No. 6461,6461
• Parties: TRADERS AND GENERAL INSURANCE COMPANY, Appellant, v. L. A. ROCKEY, Appellee.
• Court: Texas Court of Appeals

Page 490

278 S.W.2d 490

TRADERS AND GENERAL INSURANCE COMPANY, Appellant, v. L. A. ROCKEY, Appellee.

No. 6461.

Court of Civil Appeals of Texas, Amarillo.

Jan. 17, 1955.

Rehearing Denied Feb. 14, 1955.

Simpson, Clayton, & Fullingim, Amarillo, for appellant.

Bob Huff and J. H. Splawn, Jr., Lubbock (Ted Odom, Lubbock, of counsel), for appellee.

PITTS, Chief Justice.

This is a Workmen's Compensation case in which appellant, Traders and General Insurance Company, was the insurance carrier for the Slaton Co-operative Gin Company, the employer by whom appellee, L. A. Rockey, was employed on October 17, 1952, when he received alleged injuries to his back while removing a bale of cotton from a gin press, out of which alleged injuries this suit arose. The case was tried to a jury upon special issues submitted and judgment was rendered upon the verdict awarding total incapacity benefits to appellee for a temporary period of 14 weeks and 75 per cent partial incapacity benefits thereafter for a period of 290 weeks, it appearing from the record that appellee had been operated upon for a hernia for which appellant admitted liability.

In its pleadings, appellant admitted that appellee did suffer a rupture or hernia on the occasion in question for which he was entitled to receive compensation for the full maximum period of 26 weeks at a rate of $25 per week but appellant denies that appellee received any additional injury or form of incapacity to work on the occasion in question. Appellant further alleged that it had already paid all expenses for a successful hernia operation upon appellee. However, Appellant admitted in open court that if any additional recovery was awarded to appellee as a result of the alleged injuries, such award should be paid to him in a lump sum and that in any such event the maximum rate of $25 per week should be allowed as compensation for any loss of capacity found to exist, whether it be total or partial, permanent or temporary. As a result of these admissions made by appellant, the only issues to be here determined are whether or not appellee's earning capacity was reduced by reason of the alleged injuries; if so, to what extent and for what length of time.

In determining correct answers to the issues, we should keep in mind that it is for lost capacity to work that indemnity is given an employee by the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. Lloyds Guarantee Assur. v. Anderson, Tex.Civ.App., 170 S.W.2d 312, and other authorities there cited. In the case of Maryland Casualty Co. v. Drummond Tex.Civ.App., 114 S.W.2d 356 (writ refused), the court held that the Workmen's Compensation Law was designed to compensate the injured employee for the loss of earning capacity and not for the loss of earnings. In the case of Traders and General Insurance Co. v. O'Quinn, Tex.Civ.Ap., 111 S.W.2d 859 (writ refused), the court held that the risk assumed by the compensation insurance carried is not one of indemnity against loss of income but one against loss of capacity to work. The said rule was likewise announced by the court in the case of Texas Employers' Insurance Association v. Clack, 134 Tex. 151, 132 S.W.2d 399, 401, in the following language:

'One of the underlying purposes of our compensation statutes is to compensate an injured employee, not merely for loss of earnings, but for loss of earning capacity, at a wage rate based on his capacity to earn when employed on a full-time basis.'

It should likewise be observed that where an issue is made of a lump sum settlement for an employee's injuries in a compensation case, it is proper to make proof of and argue to the jury the employee's inability to work, the size of his family and the existence, if any, of their adverse circumstances and dire needs. But when it has been admitted by the adversary that a lump sum payment should be paid in case of recovery in any sum at the maximum rate of $25 per week, proof of and argument to a jury concerning the size of employee's family and its dire circumstantial needs, if any, are irrelevant and probably prejudicial matters and should not be heard, especially when there are no issues to be determined but the extent and duration of appellee's injuries, if any. Texas Employers' Ins. Ass'n v. Lee, Tex. 256 S.W.2d 569. When essential elements of an alleged cause of action are specifically admitted by an adversary in open court, they need no evidence to substantiate them and such elements need not be submitted to a jury in such event.

Appellant complains about the admission of certain testimony given over its objections by Dr. D. D. Cross, who, at the request of appellee's counsel, had carefully examined appellee professionally some two months before the trial and again more recently. Dr. Cross had testified extensively about appellee's physical condition and the kind and character of work he may be able to do and that which, in his judgment, appellee would not be able to do. Thereafter, appellee's counsel propounded the following question:

'Doctor, if a man gets hungry, he can do lots of things?'

Such appears to be merely an ex parte statement made by counsel but he probably modified his voice so as to make it in the form of a question since it is so shown in the record. Over the urgent objections of appellant's counsel, Dr. Cross answered:

'I know that a lot of men work with back injuries; almost as bad as this. Work eight hours and then go home and hurt, suffer pain all night. I have patients that do that very thing. They do it because they need to work and they need the money to live on.'

Under the state of the record before us, the question of counsel, if it be a question, was improper. The reply of Dr. Cross went far beyond giving an answer to the question, if it be such, when the injuries of others, their habits, and the speculative results therefrom were stated by the Doctor. Counsel for appellant moved to exclude the question and answer but such was overruled. According to the record, counsel for appellant preserved his point and presents it here as error and the same is sustained. Appellee contends that the question propounded was in rebuttal to matters brought out on cross examination of Dr. Cross but an examination of such cross examination does not support appelpee's contentions. The record reveals that Dr. Cross volunteered statements several times that were not in response to questions propounded to him on cross examination, which voluntary statements may have borne some relationship to his statements later made on re-direct examination. Appellee further contends that the error, if it be such, was a harmless error, but we cannot agree with such contention of appellee. We do not think either the question or the reply given by Dr. Cross, even as an expert medical witness, was proper.

Appellant complains about further testimony given on re-direct examination by Dr. Cross in connection with objective and subjective symptoms of a patient when he testified in effect that he sometimes had to rely upon what a patient told him in making a diagnosis. He then further testified, 'In that sense, it is hearsay evidence but it is evidence that is introduced in every case all over the country.' The trial court sustained appellant's objections to the hereinabove quoted testimony given by Dr. Cross and upon a proper motion instructed the jury not to consider it. Nevertheless, appellant urges that such a statement made under oath by Dr. Cross constituted prejudicial error, since the jury may attach more importance to the sworn testimony of a reputable physician and surgeon of long practice in the Lubbock vicinity than it would to the trial court's ruling. Such is possible, although speculative, and we have no way of knowing about this matter.

In Points 11, 13 and 14, appellant charges reversible errors were committed because of improper arguments made to the jury, over appellant's objections, by appellee's counsel as reflected by approved bills of exception ordered filed by the trial court. The opening argument of appellee's counsel as shown by the record and challenged by appellant in Point 11, was as follows:

'A man (referring to plaintiff, L. A. Rockey) out there working and making $125 a week, and then have to take a job that he has to feed his family and keep them in the necessities, he goes to work for $15 a week. In other words, the despair, and the difference between what he was earning then and what he has been able to work under this constant pain as he suffered there at night, is evidence on the issue of his...