Traders & General Ins. Co. v. Ray

• Court: Texas Court of Appeals
• Writing for the Court: Funderburk
• Citation: Traders & General Ins. Co. v. Ray, 128 S.W.2d 80 (Tex. App. 1939)
• Decision Date: 28 April 1939
• Docket Number: No. 1899.,1899.
• Petition History: writ dism'd judgm. cor
• Parties: TRADERS & GENERAL INS. CO. v. RAY.

128 S.W.2d 80

TRADERS & GENERAL INS. CO. v. RAY.

No. 1899.

Court of Civil Appeals of Texas. Eastland.

April 28, 1939.

Rehearing Denied May 19, 1939.

Error from District Court, Palo Pinto County; Sam M. Russell, Judge.

Suit under the Workmen's Compensation Act by Raymond Ray to set aside an award of the Industrial Accident Board in favor of the Traders & General Insurance Company. From a judgment for the plaintiff, the defendant brings error.

Affirmed.

Simpson, Dorenfield & Fullingim, of Amarillo, and Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.

Nolan Queen, of Weatherford, and J. R. Creighton, of Mineral Wells, for defendant in error.

FUNDERBURK, Justice.

Raymond Ray sued Traders & General Insurance Company to recover compensation under the Workmen's Compensation Statutes. Vernon's Ann.Civ.St. art. 8306 et seq. The alleged injury occurred on October 12, 1936, in Palo Pinto County, while plaintiff was operating a road grader for his employer, E. W. Hable. Most briefly described, the alleged injury consisted of a "strain" or sprain of plaintiff's back. Plaintiff alleged that as the result of his injuries he was totally and permanently disabled. Upon a jury trial, judgment, upon the verdict of the jury, awarded him recovery of $5,352.81. The defendant brings the case to this court by writ of error. The parties will be referred to as "plaintiff" and "defendant", the same as in the trial court.

Defendant contends that "The undisputed testimony discloses that the strain, if any, was insignificant and that the disability, if any, to plaintiff's neck and spine was caused by some character of infection; that plaintiff undoubtedly has a syphilitic infection which could more reasonably have caused his present disability than any other cause. The court, therefore," it is argued, "erred in overruling and not sustaining defendant's motion for an instructed verdict, because plaintiff's contention to the effect that his disability is due to the alleged injuries is based upon a surmise and conjecture."

It is probably true, we think, that according to the undisputed evidence, the initial stage of plaintiff's alleged injury consisted of a strain in itself apparently insignificant. According to the opinion evidence it may be further true that the disability, if any, was more immediately caused by some character of infection. The real nature of the "infection", if any, is not important, provided it was caused by the strain. Any infection causing disability is an element of compensable injury, if it be caused by accidental "damage or harm to the physical structure of the body." If the infection was syphilitic, that fact is important only upon the question of whether the infection, if any, which caused the disability, was, or was not, accidental damage or harm to the physical structure of the body. It may be conceded provisionally, at least, that if the strain constituted accidental damage or harm to the physical structure of the body, such damage or harm did not cause a syphilitic infection. If the undisputed evidence had shown that plaintiff had a syphilitic infection, then we would incline to the view that the evidence was insufficient (i.e., wanting in essential respects) to support the issue that plaintiff's incapacity, if any, was caused by the alleged injury. A situation would be presented very much analogous to those in Texas Pac. Fidelity Ins. Co. v. Hall, Tex.Civ.App., 101 S.W.2d 1050, and Texas Emp. Ins. Ass'n v. Burnett, 129 Tex. 407, 105 S.W.2d 200. But the evidence did not establish, conclusively, the fact that plaintiff had a syphilitic infection. It may be granted that an apparent preponderance of the evidence was to that effect. A question of the preponderance of the evidence generally, however — and that is true here — is so affected by the further questions of the credibility of witnesses and weight of the evidence as to make, all these altogether, questions of fact for jury determination. There was expert opinion evidence to the effect that the tests, claimed by the greater number of expert witnesses to show the existence of a syphilitic infection, were inconclusive and did not necessarily so show. According to the record, if plaintiff had syphilis the evidence of that fact consisted of the opinions of certain of the doctors. We doubt if it can ever be truly said that an issue supported only by opinion evidence is conclusively established as a matter of law. Southern Kansas R. Co. v. West, Tex.Civ. App., 102 S.W. 1174; Guinn v. Coates, Tex.Civ.App., 67 S.W.2d 621; Wichita Falls & S. R. Co. v. Holbrook, Tex.Civ. App., 50 S.W.2d 428, Id., 125 Tex. 184, 78 S.W.2d 938; Gulf, C. & S. F. Ry. Co. v. Davis, Tex.Civ.App., 225 S.W. 773; Houston B. & T. R. Co. v. Vogel, Tex.Civ.App., 179 S.W. 268; Simmonds v. St. L. B. & M. R. Co., 127 Tex. 23, 91 S.W.2d 332.

There was evidence to show that from some cause the plaintiff was totally and permanently disabled. Accepting the evidence most favorable to the plaintiff, and rejecting as untrue all evidence to the contrary, the jury, we think, was warranted in concluding that a strain, or sprain of his back received by plaintiff, in the course of his employment, constituted damage or harm to the physical structure of his body. There was testimony — contrary to other testimony to be sure — warranting an inference that an ankylosed spine resulted from such damage or harm to the physical structure of the body. Belief by the jury of the testimony (opinions) of certain of the doctors and therefore disbelief of opinions to the contrary, warranted, it seems to us, the conclusion that plaintiff's incapacity was caused by the sprain or strain. That conclusion, resulting as an inference, would be more reasonable—granting the right to reject all contrary evidence — than an inference to the effect that there existed a syphilitic infection but for which no incapacity would have resulted from the strain.

There was evidence to support the belief that ankylosis results from a protective effort of nature to relieve pain. If so, the jury did not have to accept the testimony, even if all to the same effect, that the ankylosis was caused by infection in the same sense that syphilis is an infection. From such testimony and the further testimony that the strain produced long continued pain, the jury may have inferred, not unreasonably, that the ankylosis resulted without infection as a direct response of nature to the pain. It is our conclusion that the evidence raised issues of fact for the determination of the jury.

There was no error, we think, in the action of the court in submitting an issue calling for a finding of whether or not plaintiff became totally incapacitated for work on October 12, 1936. True, the undisputed evidence showed that he did some work for a week or so thereafter, but there was evidence which, if believed, warranted an inference that he was not really physically able to do so. It has been held that the fact that an employee performed some labor after the time of his claimed total disability is not conclusive. 45 Tex.Jur. p. 588, sec. 161, and authorities cited under...