Traders & General Ins. Co. v. Robinson
| Decision Date | 26 May 1949 |
| Docket Number | No. 6443.,6443. |
| Parties | TRADERS & GENERAL INS. CO. v. ROBINSON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wood County; Nat W. Brooks, Judge.
Suit by L. G. Robinson against Traders & General Insurance Company, insurance carrier of Seaboard Drilling Company, employer, to set aside an award of the Industrial Accident Board. From a judgment for plaintiff, the Traders & General Insurance Company appeals.
Affirmed.
Jones & Jones, Mineola, Wynne & Wynne, Philip Brin, Longview, Dan P. Johnston, Dallas, for appellant.
Mullinax, Wells & Ball, Dallas, T. C. Chadick, Quitman, for appellee.
This is a compensation case and arises as an appeal by appellee Robinson from an award by the Industrial Accident Board in which is asserted a claim for total incapacity to work under the Compensation Act. Vernon's Ann.Civ.St. art. 8306 et seq. Trial was to a jury and resulted in a verdict finding appellee totally incapacitated for eight weeks and 85% partially incapacitated which was permanent. Following the verdict judgment was entered by the trial court for the appellee for eight weeks total incapacity and for three hundred weeks at $20 a week for partial incapacity which was permanent.
Appellant's points 1, 2, 3 and 4, attack the answers of the jury to special issues 7, 9, 10 and 12, as being "so contrary to the weight and preponderance of the evidence as to show passion and prejudice."
Appellee was injured on the 18th day of June, 1947, on the floor of an oil derrick while working as a driller's helper in the employ of the Seaboard Drilling Company in the Quitman Oil Field in Wood County. Appellant is the insurance carrier of the Seaboard Drilling Company. Appellee alleged that while he was engaged in breaking a drill stem he After his injury appellee was carried to a hospital in Mineola, Texas, and was treated by Dr. Moore for a period of about two weeks, after which he was discharged. It is undisputed in the record that appellee suffered an injury to one of his ear drums from shell explosion during World War I, which still causes a discharge from his ear. About 1921, appellee's tonsils were removed, and at the present time he is suffering from pyorrhea. It was stipulated that at the time of appellee's injury he was earning $70.40 per week from the Seaboard Drilling Company. In answer to special issue No. 7 the jury found that appellee's partial incapacity was permanent; to issue No. 9 that the degree of partial incapacity sustained by appellee was eighty-five per cent; to issue No. 10 that appellee's incapacity was not caused solely by any pre-existing disease; and to issue No. 12 that fifteen per cent of appellee's incapacity to labor was caused by a pre-existing disease or infection. Appellee testified that on the occasion of his injury, he, with the other members of the derrick crew, was breaking the drill stem. The tongs were fastened to the drill stem. In this operation the tongs slipped and struck appellee on the right thigh knocking him some ten feet over and against a metal chain guard. Appellee testified further that there was a cut on his right shoulder, which was sewed up at the hospital, that his knee was bruised and his back hurt. Appellee was corroborated by Dr. Schoolfield, who made at least two examinations of him with the aid of X-rays. The first examination a few months after the injury and the last one shortly before the trial. Dr. Schoolfield said that appellee's right leg at the thigh was one inch smaller than the left leg at the same point; that appellee's right knee "showed a swelling of about one-half inch." That the fifth interspace of appellee's lower lumbar vertebra was narrow and thin. When asked on cross-examination about appellee's knee and back Dr. Schoolfield testified as follows:
Appellant's evidence on the other hand was contradictory to that of appellee and his witness Dr. Schoolfield, and raised a sharp issue of fact, first as to the extent of appellee's injury, and second, as to whether appellee's condition was caused by a pre-existing disease. Clearly it seems to us that the evidence raised disputed issues of fact which were properly submitted to the jury and we do not think their answers indicate that the jury was moved by either prejudice or passion. Bobbitt v. Bobbitt, Tex.Civ.App., 223 S.W. 478, writ dismissed; Colored Baptist Church v. Giles, Tex. Civ.App., 219 S.W.2d 498; Greenspun v Greenspun, Tex.Civ.App., 194 S.W.2d 134, affirmed 145 Tex. 374, 198 S.W.2d 82. See also Greenspun v. Greenspun, Tex.Civ. App., 211 S.W.2d 977.
The finding by the jury that appellee...
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