Travelers Ins. Co. v. Glenn
| Decision Date | 10 May 1962 |
| Docket Number | No. 6488,6488 |
| Citation | 358 S.W.2d 136 |
| Parties | The TRAVELERS INSURANCE COMPANY, Appellant, v. Ike GLENN, Jr., Appellee. |
| Court | Texas Court of Appeals |
Baker, Botts, Andrews & Shepherd, Houston, for appellant.
J. C. Zbranek, Liberty, for appellee.
Plaintiff brought three suits under the Workmen's Compensation Act based upon three separate injuries, and three separate awards of the Industrial Accident Board. Plaintiff had the same employer in each instance, and this employer had the same insurance carrier at the time of all three injuries. By agreement all three suits were consolidated and tried as one. The third injury was abandoned during the course of the trial and no issues in reference to it were submitted to the jury.
The jury found that plaintiff was totally disabled for 150 weeks and 75 percent permanently partially disabled as a result of the first injury, which occurred February 15, 1957. The jury also found plaintiff was totally disabled for 78 weeks, and permanently partially disabled with an $88.00 per week difference between his average weekly earnings before his second injury, and his wage earning capacity during his incapacity, as a result of his second injury, which occurred June 30, 1958. Both injuries were compensable general injuries. The trial court entered its judgment for plaintiff for compensation for the second injury only and gave defendant credit for all payments made after the date of the second injury.
Defendant first complains of the action of the trial court in disregarding certain findings of the jury in response to Issues 25, 26, 27, and 28. These issues and the answers were as follows:
'SPECIAL ISSUE NO. 25
'Do you find from a preponderance of the evidence that the injuries of February 15, 1957, contributed to the incapacity, if any, suffered by Ike Glenn, Jr. after June 30, 1958?
'ANSWER: Yes.
'SPECIAL ISSUE NO. 26
'From a preponderance of the evidence, what do you find to be the percentage or degree of incapacity which Ike Glenn, Jr. would have sustained as a result of the injury of June 30, 1958, had there been no previous injury?
'ANSWER: None.
'SPECIAL ISSUE NO. 27
'From a preponderance of the evidence, what do you find to be the duration of the incapacity which Ike Glenn, Jr. would have sustained as a result of the injury of June 30, 1958, had there been no previous injury?
'ANSWER: None.
'If you have answered Special Issue No. 13 'Yes', and only in that event, then answer:
'SPECIAL ISSUE NO. 28
'Do you find from a preponderance of the evidence that the plaintiff's incapacity, if any, since June 30, 1958, would not have resulted but for the injury on February 15, 1957?
'ANSWER: Yes.'
Section 12c of Article 8306, Vernon's Ann.Civ.St., was intended to afford an insurance carrier the protection from having to pay an insured party for incapacity resulting from a prior injury, for which it was not liable. The jury found the second injury was the producing cause of total temporary incapacity for 78 weeks and permanent partial incapacity and the court entered judgment for this recovery only. Even though the jury also found the plaintiff sustained certain incapacity as the result of the first injury, the trial court in its judgment allowed no recovery for the first injury. The defendant could not be harmed under these circumstances, as there could be no double recovery or overlapping of the amount the plaintiff was awarded by the court in its judgment.
We also feel the action of the trial court in disregarding Special Issues 25, 26, 27, and 28 was not error because these issues were not properly submitted in order to arrive at ultimate issues upon which the defendant could base a defense under sec. 12c of Art. 8306. Even though Special Issue 25 inquired of the jury as to whether the first injury contributed to the plaintiff's incapacity, no issue was submitted to determine the extent of the contribution. This extent could have been determined by asking the jury what percent of plaintiff's present incapacity, if any, resulted solely from the second injury, or by asking the jury what percent of the plaintiff's present incapacity, if any, resulted solely from the first injury. We hold that asking the jury what percent of incapacity plaintiff would suffer as a result of the second injury had there been no previous injury is not a proper issue.
The way these issues were framed the plaintiff was in a trap from which he could not extricate himself. The first injury was to his right arm and other parts of his body. The second injury occurred when plaintiff was lifting a heavy weight and the same arm gave way, resulting in further injury to plaintiff's arm and to his back. No one could argue that the plaintiff would not have been injured the second time had there been no previous injury. That is the very logic argued by the attorney for defendant on...
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Mathis v. Charter Oak Fire Ins. Co.
...Driver v. Worth Construction Co., 154 Tex. 66, 273 S.W.2d 603, 606 (1954); see also Travelers Insurance Company v. Glenn, 358 S.W.2d 136, 138 (Tex.Civ.App.--Beaumont 1962, writ ref'd n.r.e.); 4 R. McDonald, TEXAS CIVIL PRACTICE § 17.31 (rev. By two cross-points in Cause Nos. 82-134, 82-135 ......
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Sowell v. Travelers Ins. Co.
...was no evidence of previously existing disease or condition. Hence that case is clearly distinguishable. Similarly, in Travelers Insurance Co. v. Glenn, 358 S.W.2d 136 (Tex.Civ.App., 1962, n. r. e.), there had been a former compensable injury. The Court of Civil Appeals indicated that the t......