193 S.W.2d 563 | Tex. App. | 1946
This is a workman's compensation case in which the appellee, Jack Tubbe, recovered a judgment in the trial court against the appellant, Federal Underwriters Exchange, for total and permanent disability. This is the second appeal of this case, the first having resulted in an *565
affirmance of a judgment for total and permanent disability by the Amarillo Court of Civil Appeals,
The appellee alleged that on June 29, 1942, while in the course of his employment with San Augustine Manufacturing Company, he was injured in Shelby County, Texas, by slipping and falling over a log, striking his right side and back and injuring his right kidney and lower back; that because of such injury and resulting disease and infection he was totally and permanently disabled; that this condition of disability did not exist in any degree or respect prior to June 29, 1942, and was therefore wholly the result of said injury and the resultant disease and infection caused therefrom. The appellant, in answer to such pleading, pleaded a general denial and a special denial that the appellee had sustained the accident and resulting injuries, or the disability as claimed by him, and in the alternative pleaded that in the event the disability was suffered, it was only temporary and was only partial, and further pleaded that if such appellee was suffering from the disabilities claimed the same were the result of the injuries sustained by him subsequent to the date of the alleged accident and injuries involved therein, and further pleaded that such subsequent injuries were the sole cause of his disability, if any, or a part of such cause. The appellee testified that on June 29, 1942, he was working with a woods gang and while doing so he fell over a log with his right side across the log, that he was unconscious briefly and about ten minutes after his fall began to pass almost pure blood with his urine and was sick and in great pain, that the next day he went to see a doctor for treatment, that he continued to go out on the job and try to work but that he was unable to attend to his duties and did not work; that on July 25, 1942, while working for the same employer in Sabine County, and while still bleeding from the fall of June 29th, he fell on a creek bank and thus caused his bleeding and pain to become worse. He has not worked for his said employer since July 25th.
The appellant's first point complains of that portion of the court's charge which defined "Natural result," as follows: "The term, `natural result,' as used in this charge, means the result produced by an accidental injury, if any, by itself or in connection with another cause or causes, in the usual course of events, in a natural and continuous sequence, and which result would not have occurred but for such accidental injury, if any." It objected to such definition and instruction because it included the expression "or in connection with another cause or causes," and says that since the appellee had alleged in his pleading that his entire physical disability was the result of the accident of June 29th, and since the evidence shows that he suffered a second and noncompensable accident within less than one month after June 29th, it says the definition was erroneous because it implied to the minds of the jury that a finding could be based not only on the claimed accident of June 29th but also on the accident of July 25th. By its second point the appellant complained of special issue No. 14 as given in the court's charge, which read as follows:
"Do you find from a preponderance of the evidence that Jack Tubbe's incapacity to labor, if any is not due solely to an injury, if any, sustained by him on July 25, 1942? Answer: `It is not due solely to an injury on July 25,' or `It is due solely to an injury on July 25.'"
The jury's answer was, "It is not due solely to an injury on July 25."
The appellant's objection to such special issue was that the question of the relation of the accident of July 25th to the appellee's disability was limited in such issue to whether such accident of July 25th was the sole cause of his incapacity and that the appellant was entitled to a submission to the jury asking for a finding as to whether or not such incapacity was due in part to such injury and accident of July 25th.
Appellant's third point complains of the action of the trial court in refusing to give its special requested issue No. 1, which read as follows: "Do you find from a preponderance of the evidence that Jack Tubbe's incapacity to labor, if any, is not due in part to an injury, if any, sustained by him on July 25, 1942? Answer: `Yes' or `No.'" *566
The appellant groups his first, second and third point together in his brief, and since they present closely related questions they will be so considered here.
The appellant takes the position that the appellee suffered two separate injuries, that the recovery based on the first accident would be defeated by a finding that the second accident contributed solely or partially to the appellee's disability. Under the authority of Jarrett v. Travelers' Ins. Co., Tex. Civ. App.
Appellant by its fourth point says the trial court erred in accepting the verdict of the jury and "their answers to special issues Nos. 6 and 7," which answers found that the appellee's total incapacity began June 29, 1942, and would continue permanently from June 29, 1942; it says the evidence was undisputed that after June 29th appellee continued to work until July 25th and was paid his regular salary and that between such dates he was able to, and did secure and retain employment, and hence the judgment for total and permanent incapacity for 401 weeks from June 29, 1942, has no support in the record, either in the pleadings or the evidence. We overrule this contention. The evidence shows that Tubbe was in severe pain and did very little work, if any, after June 29th, and that he was not able to work at all. It is well settled that the fact that an injured employee resumes work after an injury does not preclude a finding of total, permanent disability, but merely presents a fact to be considered by the jury in passing upon the question of the accident and duration of the incapacity. Southern Underwriters v. Grimes, Tex. Civ. App.
Appellant's fifth point complains of the action of the trial court "in permitting appellee Tubbe to testify that the physician treating him told him that he had *567 a bursted kidney sloughing off." While the appellee was testifying on direct examination regarding his physical condition, his attorney asked the question, "Do you know why you couldn't?" and he answered as follows: "Well, he told me it was a bursted kidney sloughing off." Counsel for appellant objected to such statement as being hearsay. The court overruled the objection, whereupon the attorney for the appellee stated to the court that he withdrew the question and the court thereupon instructed the jury not to consider even the asking of the question because it had been withdrawn. Appellant excepted. Appellant says that the court gave no instruction to the jury to disregard the answer of the witness but the court merely instructed the jury not to consider the question. No error is presented by this point. The court's instruction to the jury not to consider even the asking of the question because it had been withdrawn excluded from the testimony both the question and any answer made thereto. The appellant did not request the court to instruct the jury not to consider the answer and made no motion in regard thereto, which was a necessary step to take if it desired that such answer also be included by the court in his instruction to the jury. See 64 C.J. p. 222, par. 234; 53 Am.Jur. 133.
The appellant's sixth point complains of certain features of the testimony of Dr. L. E. Giffin, who testified in behalf of the appellee. Dr. Giffin testified on the first trial of this case and died before the date of the present trial. His testimony from the first trial was read under a written stipulation of counsel. The particular part of the doctor's testimony to which exception was taken was as follows (the witness was speaking of the appellee Tubbe): "As well as I remember he brought in another specimen of urine for me to analyze for him and told me at that time that sometime between then and the first visit he had suffered some sort of injury to his back — low back."
We have determined from the record that Dr. Giffin was testifying under circumstances which show him to be a witness who had examined the injured man several times for the purpose of prescribing treatment. This is more fully discussed under appellant's seventh point. Without further discussion here, it is sufficient to say that under the circumstances the court did not err in permitting the witness to mention briefly in his testimony that the appellee had told him "that he had suffered some sort of injury to his back-low back. "The statement thus made did not attempt to relate any of the details of the manner in which the accident occurred and hence does not fall within the exception to the general rule which is discussed in the case of Texas Employers Insurance Ass'n v. Morgan, Tex. Civ. App.
By its seventh point, appellant complains of the action of the trial court in permitting Dr. Giffin to testify in regard to the extent and duration of appellee's disability on the ground that such witness had testified that he had merely examined the appellee and had not treated him, and that his opinion was based on the subjective symptoms and on the history of the case given to him by the appellee. On the former appeal of this case, Federal Underwriters Exchange v. Tubbe,
By its eighth point the appellant complains of the language contained in special issue No. 8 of the court's charge, which read as follows: "Do you find from a preponderance of the evidence that Jack Tubbe had sustained or will sustain partial incapacity as the natural result of such injury? Answer: `Yes' or `No.'"
Appellant says that the use of the phrase "has sustained or will sustain" constituted a comment on the weight of the evidence, was misleading and duplicitous, and relies on the case of Traders General Insurance Co. v. Shelton, Tex. Civ. App.
No harmful error being presented by the appellant, the judgment of the trial court is affirmed.