United States Fidelity & Guaranty Co. v. Weir

• Decision Date: 10 June 1926
• Docket Number: (No. 377.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. WEIR et al.
• Court: Texas Court of Appeals

286 S.W. 565

UNITED STATES FIDELITY & GUARANTY CO. v. WEIR et al.

(No. 377.)^*

Court of Civil Appeals of Texas. Waco.

June 10, 1926.

Rehearing Denied July 5, 1926.

Appeal from District Court, Navarro County; Hawkins Scarbrough, Judge.

Proceeding under the Workmen's Compensation Act by B. C. Weir against the United States Fidelity & Guaranty Company. An award of the Industrial Accident Board was affirmed in the district court, and defendant appeals. Affirmed.

Seay, Seay, Malone & Lipscomb, of Dallas, and Richard & A. P. Mays, of Corsicana, for appellant.

King & York, of Austin, James Spiller, of Panhandle, and C. W. Taylor, of Corsicana, for appellees.

STANFORD, J.

This action was brought in the district court of Navarro county as an appeal from a decision of the Industrial Accident Board of Texas. Plaintiff alleged he was injured while in the employ of the Home-Okla Oil Company by being struck by an elevator on or about the 16th day of March, 1924. The appellee alleged that he had been permanently and totally disabled while in the course of his employment by reason of having received a severe blow, causing him to fall upon his right side across some heavy timbers, from which severe blow and bruises there developed incurable abscesses in the lungs. The case was submitted to a jury on special issues, and, the answers of the jury so requiring, the court rendered judgment for compensation in a lump sum. Said special issues, the findings of the jury in response thereto, and the evidence bearing upon same will be stated more fully in the disposition of appellant's assignments.

Opinion.

Under appellant's first assignment it contends that the finding of the jury that appellee was permanently and totally disabled is contrary to the overwhelming weight of the evidence and should be set aside. Appellee testified that he was 26 years of age; that on the 16th day of March, 1924, he was working in the Currie oil field for the Home-Okla Oil Company on a well known as the McCaw No. 1; that on said day while he was in a stooping position, screwing up some screws that hold the rods in the well, the rod elevator and rod fell some 18 or 20 feet and hit him over the left shoulder and rapped him across the back and knocked him some 4 feet, and that he fell, striking his right side against some 3×12 timbers; that he tried to continue to work that day at the same job, could not do the work, and then exchanged his job for a lighter one, but did little work that day — was suffering pain in his left shoulder and right side; that he laid off two days, but was still unable to work, and continued to suffer pain in his right side, until he was operated on about six months later for an abscess in his lungs; that he had hemorrhages from his lungs, had a second operation for another abscess in a different part of his lungs; at the time of trial was in the Navarro County Hospital, where he had been for six months, with three tubes in his right side to drain the pus that accumulated in his lungs. At the time of the trial there was swelling in his feet and his fingers were stiff, and he testified he was unable to walk more than three or four blocks; that he was unable to do any kind of work and was greatly emaciated; that at the time of his injury he weighed 175 pounds and was able to do any kind of hard labor around oil wells; that when he was operated on for the first abscess he weighed 130 pounds. He was corroborated by other witnesses as to how the injury occurred, and also as to his physical condition. Dr. David, also Dr. Shell, testified, in substance, that they had treated appellee; that they had an X-ray picture made of his lungs; that they performed two operations for abscesses in his right lung. Both testified that in their opinion the abscesses in his right lung were caused by the injury, and that he would never be able to perform manual labor. Both testified they had made careful examinations and tests to determine if there were any traces of tuberculosis, and there were none.

In answer to the fourth special issue, the jury found "that on March 16, 1924, the said B. C. Weir sustained personal injuries," and in answer to the eighth issue the jury found "that such injuries did result in the permanent total incapacity of the said B. C. Weir." We think this finding is amply supported by the evidence. We overrule appellant's first assignment.

Under its second assignment of error, appellant contends the trial court erred in giving, in connection with special issues 4 and 8, the following instruction:

"You are hereby charged that the phrase, `permanent total incapacity for work,' as used in the Workmen's Compensation Act, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as totally incapacitated."

Appellant contends this was error, in that said definition was not applicable to the facts of the case, and ignored the evidence in the record of plaintiff's ability to earn a livelihood in other vocations in which he was versed, as shown by the evidence, to wit, a motion picture operator, and ignored the permanency of the injury, etc. As above stated, in response to the eighth special issue the jury found that the injuries to appellee did result in his permanent total incapacity. Article 5246 — 33, Vernon's Sayles' 1918 Statutes, provides: "In cases where death or total permanent incapacity results from an injury," etc., the injured employee may be entitled to a lump sum payment. We think the expressions, "permanent total incapacity" and "total permanent incapacity," mean exactly one and the same thing, and that appellant's criticism of the wording of the eighth special issue is without merit. The court's explanatory charge given in connection with special issue No. 8 is a correct definition of "total disability," and has many times been approved by our appellate courts. Home Life & Accident Co. v. Corsey (Tex. Civ. App.) 216 S. W. 464; Western Indemnity Co. v. Corder (Tex. Civ. App.) 249 S. W. 316; Georgia Casualty Co. v. Ginn (Tex. Civ. App.) 272 S. W. 601; In re Sullivan, 218 Mass. 141, 105 N. E. 463, L. R. A. 1916A, 378, and note; Moore v. Peet Bros., 99 Kan. 443, 162 P. 295. It was not necessary for the court to define the term "permanent," and the court did not undertake to do so, and, while it was not strictly correct in defining "total disability" to include in the expression defined the word "permanent," at the same time, under the facts of this case, we think, appellant could not have suffered any injury by reason of this technical inaccuracy. The jury doubtless understood the meaning of the term "permanent" as well as the court did. The court gave the jury the correct definition of "total incapacity," and the jury found that "such injuries did result in the permanent total incapacity of the said B. C. Weir," and such finding is amply supported by the evidence. Neither do we think said charge was erroneous as applied to the facts of this case. Appellee testified that he did farm work when he was a child, and that as soon as he was large enough he went to work in the oil fields; that he had never done anything but manual labor; that when he was going to school he learned to operate a picture machine — no evidence as to when this was, but doubtless when a child; no evidence ...