Traders & General Ins. Co. v. Burns

• Decision Date: 27 May 1938
• Docket Number: No. 13773.,13773.
• Citation: 118 S.W.2d 391
• Parties: TRADERS & GENERAL INS. CO. v. BURNS.
• Court: Texas Court of Appeals

Page 391

118 S.W.2d 391

TRADERS & GENERAL INS. CO. v. BURNS.

No. 13773.

Court of Civil Appeals of Texas. Fort Worth.

May 27, 1938.

Rehearing Denied June 24, 1938.

Error from District Court, Tarrant County; Walter L. Morris, Judge.

Suit under the Workmen's Compensation Act by A. V. Burns against the Traders & General Insurance Company to recover compensation for total permanent disability. Judgment for plaintiff awarding a lump sum, and defendant brings error.

Affirmed.

Lightfoot, Robertson & Gano and Dan P. Johnston, of Fort Worth, for plaintiff in error.

Leo Brewster, Harris Brewster, and Garland Flowers, all of Fort Worth, for defendant in error.

SPEER, Justice.

This appeal involves certain provisions of the Workmen's Compensation Act, contained in Articles 8306 et seq., Rev.Civ.St., and amendments thereto, Vernon's Ann. Civ.St. art. 8306 et seq.

Plaintiff, A. V. Burns, was the employee, defendant, Traders & General Insurance Company, was the carrier of compensation insurance, and Worth Mills, Inc., was the employer and subscriber.

Plaintiff alleged all necessary jurisdictional grounds, and that for several years he had been in the employ of Worth Mills, Inc., until on June 23rd, 1936, while in the discharge of duty as an employee, he received an injury from which he became totally and permanently incapacitated to perform manual labor. That he was unloading bales of cotton from a box car at his employer's plant, and in an effort to pull a bale of cotton with hooks, from one position to another, the hook slipped or broke, causing him to fall backward out of the box car onto the ground, injuring his head, neck, shoulders, chest and back. Allegations concerning the amount of compensation claimed were based upon primary and alternative pleas respectively, that he had worked for a year prior to his injuries, and if not, then others in that vicinity had engaged in similar work for that period, and, if mistaken in this, a fair and equitable wage rate to all parties was $13.90 per week. Further rather unusual alternative allegations were made, to the effect that if he was mistaken in his claim that he was permanently and totally incapacitated, then by reason of his injuries he had suffered temporary, total disability, and permanent partial disability; further in the alternative, if mistaken in the last allegation, because of his injuries, he had sustained permanent partial disability, and further alternatively stated he had suffered temporary partial disability. Allegations were made upon which the right of a lump sum settlement was asked.

The defendant answered by general demurrer, special exceptions, a general denial and plea in cross action against plaintiff for the recovery back of certain weekly compensation payments theretofore made by it through error and mistake.

A jury trial was had; special issues were submitted by the court, a verdict rendered and the judgment was entered for plaintiff in lump sum, the amount being based upon 60 per cent of the average weekly wage found by the verdict. Motion for new trial was overruled and this appeal perfected by writ of error.

The answers to issues submitted were all favorable to plaintiff and against the defendant. The issues and their answers constituted a verdict substantially as follows: Upon separate inquiries it was found that plaintiff sustained accidental injuries on June 23rd, 1936, while in the course of his employment, to his head, chest and shoulder; that on the date last mentioned plaintiff was totally incapacitated, as a result of the injuries sustained, and that his total incapacity was permanent; the length of time of such total incapacity since June 23rd, 1936, to the date of trial was 47 weeks and four days; he will suffer total incapacity in the future for "as many weeks as he lives"; he has suffered no partial incapacity as a result of the injuries sustained; he will not suffer partial incapacity in the future as a result of his injuries; a manifest hardship and injustice will result to plaintiff if the compensation to plaintiff is not paid in a lump sum; the plaintiff had not worked at Worth Mills, Inc., for substantially the whole year prior to the date of the accident, nor had any other employee of the same class done so in the same or similar employment in the same or a neighboring place; $13.90 per week was the average weekly wage for plaintiff, based upon what is fair and just to both parties.

Special Issue No. 26 reads: "Do you find from a preponderance of the evidence that any injury or injuries plaintiff, A. V. Burns, had received prior to June 23rd, 1936, did not contribute in any degree to the result, if any, of any injury or injuries, if any, he may have sustained on June 23rd, 1936, if you have found he was injured on the last named date?" This issue was answered: "They did not." By the verdict, it was further found that the policy of insurance carried by defendant was in force on June 23rd, 1936, and that it covered plaintiff, A. V. Burns; that defendant had previously paid to plaintiff, in compensation as a result of the injuries sustained, at the rate of $8.34 per week. Issues Nos. 33 and 34 are the subject of complaint by defendant and they with their answers read: "Question 33: Do you find from a preponderance of the evidence that the focal infection of the plaintiff, A. V. Burns, brought about by the abscessed teeth of plaintiff, was not the sole cause of any disability, if any, he may have suffered subsequent to June 23rd, 1936? Answer `It was the sole cause' or `It was not the sole cause,' as you find the facts to be." The answer was: "It was not the sole cause."

"Question 34: Do you find from a preponderance of the evidence that the injury or injuries sustained by the plaintiff, A. V. Burns, at any time prior to June 23rd, 1936 was not the sole cause of any disability, if any, the plaintiff may have suffered since June 23rd, 1936, if in fact he did suffer any disability? Answer `It was the sole cause' or `It was not the sole cause,' as you may find the facts to be." This was answered: "It was not the sole cause."

There are 164 paragraphs in defendant's motion for new trial; many of these paragraphs contain more than one assigned reason why the court should set aside its judgment and grant a new trial. With candid frankness these are brought forward in its brief by twenty-seven assignments of error, each of which is admirably clarified by appropriate propositions relied upon. We pause here to say both parties to this appeal have furnished us with thorough and logically arranged briefs, for the like of which appellate courts are always grateful. The ever increasing volume of litigation growing out of the Workmen's Compensation Act has brought before our courts almost every conceivable issue that could arise under its construction, and we believe the weight of authority thus expressed is against the contentions of defendant.

Defendant's first three propositions are based upon the court's refusal to submit an issue inquiring of the jury if any part of plaintiff's disability was attributable to the focal infection caused by his admittedly abscessed teeth. The objection to the charge on this point, made before its submission, was in effect that the testimony showed plaintiff's disability was attributable to some extent, degree or per cent to the condition of his teeth, and the court was asked to submit the question to the jury. It is not contended that an issue was prepared by defendant and its submission requested. The only issue submitted with reference to the focal infection from bad teeth was Number 33, quoted above, which inquired if that infection was the sole cause of plaintiff's disability. But the contention is that Issue No. 33 being an incorrect one, the objection to it made at the time was sufficient to entitle defendant to have it reviewed on appeal. We think defendant brings itself within the rule announced in the case of Gulf C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183. In that case, Judge Cureton, speaking for the court, discussed Articles 1971 and 1985, Vernon's Sayles' Ann.Civ.St.1914, which relate to issues arising, and there laid down the rule in this language: "These two statutes were enacted to accomplish the same purpose, and we think a failure to submit any particular issue under either statute can be reviewed on appeal only where the record shows a special charge was tendered on that issue. But in the instance of a defective or erroneous charge on a subject or issue which the court has undertaken to charge upon, the objections required by article 1971 take the place of special charges and render it unnecessary that the latter be tendered."

We think the proposition urged by defendant presents an erroneous theory, and that under the decisions of our courts, the special issue No. 33 was correct. If plaintiff's incapacity was caused solely by his infected teeth and not from the accidental injury, then he could not recover compensation, for the reason compensation insurance does not cover diseases. There must be a causal connection between the accidental injury and the disability for which compensation is provided. Travelers' Ins. Co. v. Peters, Tex.Com.App., 14 S.W.2d 1007. There was a sharp conflict between the testimony of the doctors offered by both parties. Some testified that in their opinion if plaintiff had ever been incapacitated to work as a result of the injury sustained in the fall, he had entirely recovered from it at the time of the trial and that his disability then was from the results of infection from his teeth; others testified that his disability was occasioned by the accident and that the disease was contributing thereto. Under such a conflict in the evidence, in the view we take of the law applicable, it was proper to submit to the jury an inquiry of whether or not plaintiff's disability was occasioned solely by the focal infection because...