Traders & General Ins. Co. v. Heath

• Citation: 197 S.W.2d 130
• Decision Date: 06 June 1946
• Docket Number: No. 11778.,11778.
• Parties: TRADERS & GENERAL INS. CO. v. HEATH.
• Court: Court of Appeals of Texas

197 S.W.2d 130

TRADERS & GENERAL INS. CO. v. HEATH.

No. 11778.

Court of Civil Appeals of Texas. Galveston.

June 6, 1946.

On Motion for Rehearing Oct. 10, 1946.

Rehearing Denied October 31, 1946.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit under the Workmen's Compensation Act by George E. Heath against Traders & General Insurance Company to set aside an award of the Industrial Accident Board. From a judgment granting relief, defendant appeals.

Judgment affirmed.

Sewall Myer, Sam Holliday and Al Crystal, all of Houston, Lightfoot & Robertson and Dan P. Johnston, both of Dallas, for appellant.

W. A. Combs and Combs & Dixie, all of Houston, for appellee.

CODY, Justice.

This is a workmen's compensation case. The jury found that the employee suffered an injury which totally and permanently disabled him, and the award was reduced to a lump sum, amounting to $7,020. The jury found against the defensive issue that the employee sustained the injury while in an intoxicated state. The insurance company, hereafter called appellant, sharply contests the findings that the employee's incapacity was total and permanent.

Said award for total incapacity is based upon the jury's answers to special issues Nos. 4, 5 and 7. By its answers to said special issues, the jury found: (4) that the total incapacity which appellee suffered on June 11, 1944, was permanent; (5) that it was not temporary; and (7) that it was not partial. Appellant attacks such findings as not being supported by the evidence, principally on the ground that it was undisputed that appellee was regularly employed for some nine months after his injury, and before trial, during which he earned $2,134.21. Indeed, 11 of the first 12 of the 20 points, upon which appellant predicates its appeal, present different aspects of appellant's complaint on this score. Appellant's points 13 to 20, inclusive are set out herein following our discussion of the points 1 to 12, inclusive.

The substance of appellee's evidence in support of issues 4, 5 and 7, is:

That, while driving a truck for Brown Express, Inc., on June 11, 1944, appellee fell asleep, and the truck left the road, and he received a severe concussion or contusion of the brain. That he did not recover consciousness until the second day after the accident, when he found himself in a hospital. That he remained there under treatment by appellant's doctors until the following July 7, when they permitted him to go home. That said doctors released him for work on August 27, 1944. That, relying upon the advice of said doctors, he asked his employer for light work, but his employer refused to take him back. That he received no compensation from appellant so was compelled to seek employment. That he got a light job with Rettig Ice Cream Company, but found that it required a sense of balance, and involved the exercise of memory, and his had been impaired as a result of the accident, so he had to quit. That he obtained light work from the Brown Shipyards, but found that he would get dizzy, and his head would hurt him. And every night when he returned home from work, as soon as he had a bite to eat he had to go to bed. That he was laid off by the Brown Shipyards and stayed about home for four or five weeks until he obtained "dock work" from the Red Ball Motor Freight Company. But he found that he couldn't do manual work, which was the only sort of work that he knew how to do.

Three doctors testified on appellee's behalf. In substance they testified that appellee was unable to work. And this testimony was given in light of the knowledge on their part of appellee's work record after the accident. Dr. Brumby testified that his diagnosis of appellee's condition at the time of the trial was that it is a slow inter-cranial hemorrhage occurring in the pre-frontal or solid area of the brain, and such condition may "lay" free of symptoms for months or even years with little pressure on centers. But that such condition ultimately causes symptoms of epilepsy after a few years time, and he thought appellee's life expectancy was shortened. He thought appellee was not capable of doing manual work, and if he persisted in working the brain damage would be aggravated. The other two doctors who testified on appellee's behalf were also of the opinion that he was incapable of doing manual labor, and that to do so would aggravate his condition; and that he would not improve in the future.

Appellant points out that before appellee sought employment he consulted the aforesaid Dr. Brumby, a physician of his own choice, and that it was with Dr. Brumby's knowledge that appellee went to work. In this connection it is to be noted that Dr. Brumby instructed appellee to report to him weekly. Appellant further notes that appellee, prior to going to work at Brown Shipyards, signed cards stating that he was able to work, and was examined by the doctor there in charge. That between September 5, 1944, and June 23, 1945, when he stopped working, appellee earned $2,134.21; that his wage was 75¢ an hour until January 15, 1945, and thereafter was 94¢ an hour. Appellant also notes that appellee worked until about three weeks before his case was set for trial. Appellant's doctors, contrary to appellee's doctors, thought appellee had recovered and that he could work.

The extent and duration of the incapacity suffered by appellee on June 11, 1944, were fact questions to be determined by the jury. Of course it appeared as a matter of law that, during the two or three days which appellee remained unconscious, his incapacity to work was total. Appellee's testimony minimized the amount of work which he actually did during the nine months for which he received remuneration. According to his testimony he was only able to go through the motion of working. According to his expert medical testimony, he was totally incapacitated, from a medical viewpoint, to work, and this incapacity began on June 11, 1944, and the condition responsible for such incapacity would not get better, but would get worse. Apparently his physicians could not tell until after he had worked for some time that, from a medical viewpoint, his incapacity to work was total and had been so from June 11, 1944, and would continue so permanently. The law contemplates that in the determination of issues of the extent and duration of the incapacity suffered by an employee the jury may consider medical expert testimony. And it is now well settled that the mere fact a workman worked and earned money after sustaining an injury is not conclusive on the issue of his capacity to work, but is evidentiary only, to be considered along with the other evidence. Davies v. Texas Emp. Ins. Ass'n, Tex.Com.App., 29 S.W. 2d 987; Traders & General Ins. Co. v. Collins, Tex.Civ.App., 179 S.W.2d 525; Lott v. American Surety Co., Tex.Civ.App., 140 S.W.2d 928; 45 Tex.Jur., 588, par. 161. The evidence here was certainly sufficient to have justified the jury in concluding that appellee was malingering. But under the cited holdings the findings of the jury on the issues in question cannot be set aside merely because of the evidence that appellee worked for nine months during the period between his injury and the trial.

Appellant's fifth point is directed against the form of special issue No. 7, which reads: "Do you find from a preponderance of the evidence that plaintiff, G. E. Heath, has or will suffer partial incapacity to work as a result of the injury, if any, sustained by him on or about June 11, 1944?" (Emphasis supplied.) Whether same is duplicitous or not, it does not present reversible error, and falls within the ruling made in Traders & General Ins. Co. v. Carlile, 138 Tex. 523, 161 S.W.2d 484; Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280, 282. The form of the special issue is practically identical with the form passed on in the cited cases, and we assume was copied therefrom. We overrule appellant's points 1 to 12, inclusive.

Appellant's 13th point complains of the court instructing the jury, over its objection, not to consider anything that had not been placed in evidence. The gist of appellant's objection that such instruction would cause the jury not to take into consideration those matters within their knowledge which are within the common knowledge of mankind. It is clear that the court by the instruction was telling the jury not to consider particular matters resting in their private knowledge, but...