Yates v. Pacific Indemnity Co.

• Decision Date: 19 January 1946
• Docket Number: No. 6190.,6190.
• Citation: 193 S.W.2d 266
• Court: Texas Court of Appeals
• Parties: YATES v. PACIFIC INDEMNITY CO.

193 S.W.2d 266

YATES v. PACIFIC INDEMNITY CO.

No. 6190.

Court of Civil Appeals of Texas. Texarkana.

January 19, 1946.

Rehearing Denied January 24, 1946.

Appeal from District Court, Cherokee County; H. T. Brown, Judge.

Suit under the Workmen's Compensation Act by Wesley A. Yates to set aside an award of the Industrial Accident Board in favor of the Pacific Indemnity Company. From a judgment denying relief, plaintiff appeals.

Affirmed.

Fulmer & Fairchild, of Nacogdoches, for appellant.

Carrington, Gowan, Habberton, Johnson & Walker, of Dallas, and Guinn & Guinn, of Rusk, for appellee.

HALL, Chief Justice.

Appellant instituted this suit in the District Court of Cherokee County to set aside an award of the Industrial Accident Board, and sought compensation for the total and permanent loss of the use of his left leg. The trial was to a jury upon special issues. To special issue No. 1, the jury found that appellant did not sustain an accidental injury to his leg below the knee on or about August 8, 1944, the date of the alleged injury; and to special issue No. 18, the jury answered that if appellant sustained any loss of the use of his left leg, such loss of use was due solely to disease. These were the only issues answered by the jury and upon said answers judgment was rendered for appellee.

By the first point appellant asserts that the jury's answer to special issue No. 1 is contrary to the overwhelming weight and preponderance of the evidence. Appellant was employed as a common laborer of the Southwestern Bell Telephone Company of which appellee was insurer, and at the time of his alleged injury was engaged in constructing a telephone line through Cherokee County. Appellant testified: "I got through digging a hole and went and throwed the shovel down and the handle flew up and hit my left leg below the knee." He testified further that he did not feel much pain at the time and kept on working for the remainder of the day. Appellant did not report for work after the date of his alleged injury. Three days later he, in company with Mr. Cowley, his superintendent, consulted a physician. The superintendent and physician testified that they noticed a small pink spot about half an inch to an inch in diameter below the knee of appellant's left leg where the skin was roughed but not broken. Appellant saw the doctor several times thereafter and was treated by him. He testified that his leg pained him from his ankle to his hip. None of the appellant's fellow-workers knew anything about his receiving an injury. Appellant testified that he told a fellow-employee named Dick about the shovel handle striking his leg but Dick contradicted this statement. The other employees working with or near appellee testified in effect that there were no logs on the right of way in the vicinity where appellant claimed that he received his injury. Appellant's oral deposition was introduced in which he asserted that he was injured about 2 o'clock in the afternoon. He testified upon the trial that the injury occurred about 10 o'clock in the morning. It is undisputed that some 18 years prior to his alleged injury appellant underwent an operation on his left leg below the knee for osteomyelitis which left large scars. There is evidence in the record of statements by appellant that his left leg had been bothering him for the past three years. These conflicting facts and circumstances surrounding appellant's injury, as stated by appellant in his brief, presented a hotly contested issue of fact as to whether the appellant received any injury to his leg on the occasion of his alleged injury. This issue was properly submitted to the jury for determination and its finding thereon will not be disturbed. Mason v. Downs, Tex.Civ.App., 168 S.W.2d 520, writ refused; Safeway Stores, Inc., v. Webb, Tex.Civ.App., 164 S.W.2d 868, writ refused for want of merit. This point is overruled.

By point 2 appellant complains that the court erred in excusing J. F. Cowley (a witness for appellee) from the rule. At the beginning of the trial the rule was invoked by appellant. Appellee's counsel stated to the court that appellee was without a representative in court and he desired that the witness Cowley be excused from the rule as he was Superintendent for the Southwestern Bell Telephone Company, the insured, and was familiar with the facts surrounding appellant's alleged injury. Cowley made out the report of appellant's injury and forwarded it to his superior at Brownwood, Texas, and he was also the first representative of his company to consult a physician for appellant and was present at his physical examination. Appellee, the insurance company, had no representative present in the court to aid its counsel in presenting its case to the court and jury. It is within the discretion of the trial court to permit a representative to remain with counsel to aid him in the preparation and presentation of the case. Under the circumstances it is our opinion that the trial court did not abuse its discretion in granting appellee's request and excusing the witness Cowley from the rule....