*1 COMPANY, The TRAVELERS INSURANCE
Appellant,
O. L. WADE, Appellee.
No. 16240. Appeals
Court of Civil of Texas.
Dallas.
Sept. 27, 1963.
Rehearing 6, Denied Dee. Wright Simmons,
Thompson, Knight, & Kidder, Dallas, appellant. for and David S. Mullinax, Mauzy Wells, Morris & McGuire, Dallas, Jr., appel- C. Lonnie lee. *2 points appeal general to three too are
DIXON, Chief Justice.
be entitled to our consideration.
has.
The Travelers
Insurance
Appellee
presented
of five
appealed
in a workmen’s
the
judgment
from a
lay witnesses,
appellee pay-
tes-
compensation
including
which
awarding
timony
per-
disability.
permanent
was favorable to
claim of
ments for
his
total
disability.
manent
total
offered
He
ap-
presents
points on
Appellant,
three
testimony. Appellant
two
medical
offered
is
peal,
of them
but the
of each
substanсe
witness,
medical
an
witnesses and one
total and
jury for
that “the verdict of the
pictures
investigator who had taken motion
against
the
disability was so
of appellee
in
engaged
while
evi-
of the
overwhelming preponderance
certain
The medical
activities.
prejudice.”
to
dence as
indicate bias and
un-
part,
in
and,
pictures
the motion
favorable
We shall
appellee’s
claim.
appel
says that
Appellee
points
in two
attempt
not
a
of the evi-
detailed statement
points
be entitled
lant’s
are too
points
appellant’s
dence. But
nature
the
sus
our
and cannot
consideration
requires
present
that
at
short
we
least
the
they
attack on
tained
make no
because
summary of the evidence.
any specific special issue.
jury’s answer to
us to
appelleе cites
view
Supreme Court
recent
of our
EVIDENCE FOR APPELLEE
Employers
in
Insurance Ass’n
testified
he had been
Wade
that
Hawkins, Tex.,
employed by
Company as
F. M. Woodward
operator
an
heavy equipment such as
Supreme
Court
In the above case
bulldozers, scrapers and front end loаders.
Appeals, 363
that
held
Court of Civil
picked
On October
a rock
trial
reversing
788 erred
forty
weighing
thirty
pounds
between
that
ground
judgment
court’s
on the
which had
and in toss-
fallen from truck
jury
as a whole
“[Tjhe verdict
ing
injured
the rock
onto
the truck
prepon
great weight
is
against
so
back, suffering
pain.
great
his
(Emphasis
derance
evidence.”
that
Supreme
Court said
ours).
evening
That
and on numerous occasions
that
assignment
general,
is too
above
for two
he was treated
thereafter
months
jurisdiction
proper
of its
exercise
by
Harvey
family physician Dr.
Appeаls must determine
Court
Swords,
osteopath.
gave
an
Dr. Swords
was so
which
answers
of the
one
manipulative
him medication and
treat-
weight
overwhelming
contrary to the
brought
which eased his
ments
preponderance of the evidence
improvement in his back
about some
condi-
unjust.
clearly
wrong
had
Becoming
tion.
dissatisfied because he
improvement, ap-
further
ceased to show
by
pronouncement
our
The above
pellee
employer’s suggestion
at his
went
applicable to
sit
not
Supreme Court is
Branch,
orthopedic
sur-
see Dr. W. M.
presented to us in the instant case.
uation
about
mid-
geon,
treated him until
who
appellee suf
appellant admits that
Here
Appellee had not
of December.
worked
dle
disability
Appel
temporarily.
total
fered
injury. He testified that under
since his
appellee’s
only
lant attacks
Branch
condition became worse.
disability
nar
is
This
total
issue, Special
to work December
inquiry
Is
He returned
our
one
rows
not
could
continue to
its
but found
No.
where
answer
sue
heavy equipment
disability
because the
per
operate the
found
necessary
рull
operate
points
and the
appellee’s two
vibration
We
manent.
overrule
pain in his back.
appellant’s
heavy levers
He
caused
asserts that
wherein
Woodward,
quit
job
appellee every day.
the middle
with
saw
owns
Daniels
employed
ready-to-wear
Jаnuary
shop
Wade
Mrs.
*3
where
years.
Appellee’s parts
first
shop
Woodward for about
works.
at
twelve
ready-to-wear
located next door
to the
leaving’
employ
After
of Woodward
shop. Appellee
pain,
complained of
appellee went
intо business for
things
couldn’t lift
and
care
couldn’t take
parts
shop.
soon
opening an auto
He
of
properly.
his
business
had
Daniels
shop
moved this
The
business to his home.
eight
friend of
or
for seven
February
profits
gross
showed
from
years.
September
through
averaging
$117.20
per
Sanders,
month.
M.
H.
Motor
Ford
employee
appellee,
long
and
time friend of
appellee
Meantime
to suffer
continued
appellee
testified
had
that he
fifteen
seen
pain
back, hips
legs.
in his
At times
twenty
or
since
times
October
could
fairly
could bend over
well but
Appellee complained
pain
of
in his back
of
hardly
up. Usually
straighten
instead
standing
legs
get
and could not
ato
his
bending
keeping
over he would squat,
position
any
or
good.
walk
do
around to
very
straight
back
with
little bend.
appellee
When Sanders would
at the
visit
He
way
get up
he could
eаsier.
and down
parts shop,
help
latter’s
would have
objects weighing
was unable to lift
over
appellee
Appellee
with his work.
for some
his
twenty pounds. Following treatments
years
repair
done
had
automobile
work
pain
if he
would diminish.
thereafter
But
during
off-duty
his
About a month
hours.
pain
re-
walked
far as block
would
prior
ap-
to the trial
to see
Sanders went
turn
and his
condition would worsen.
pellee
get
repair
him to do some
work
formerly played
his
He had
“catch” with
Appellee
on Sanders’ car.
hobbled
son,
League
player. But
a Little
basebаll
pain
door and told Sanders he was in such
“catch”,
longer
play
able
he was no
repair
that he could not do the
work.
playing
throw a football in
with his son.
dizzy spells.
Sometimes he suffered
sister,
Rouse, appellee’s
Mrs. Gertrude
injury.
visited him several
his
times after
appellee’s аpplications
employ-
Twice
for
complained
Appellee
pain
of
in his back
rejected,
employment
were
ment
once for
legs.
He was unable to rise from a
machinery company
with a
for
and once
position without
sitting
bracing
on
himself
employmеnt
night
Except
aas
watchman.
a table.
parts
appellee
business
for his
has not
leaving
worked since
F. H. Woodward
EVIDENCE FOR APPELLANT
Company. At the time of the trial he was
n
pain.
suffering
still
Swords, appellee’s family physician
by appellant.
as a witness
The
was offered
Appellee’s wife testified that on the date
subpoenaed
were
records
Doctor’s
appellee
injury
came home bent over
of
appeared
himself
under threat of a
Doctor
pain.
He had
getting
trouble
his
had
subpoena. He
treated
for
sleep
he was
breath. Often
unable to
at
general
backache
numerous occasions
He was
bed
night.
most of the month
prior
injury
October
improve-
of October.
showed some
April
May
1954 until
1961 the
From
December,
in November and
but
ment
records show that he had
Doctor’s
treated
back to
he went
work in
when
December
twenty-seven
appellee for
backache
any
tell that
couldn’t
he was
better.
she
times.
limps.
Sometimes when he
Sometimes
he has to
something
over
lean on
bends
reported
evening
When
up.
straighten
him
help
X-ray
it was
late to take
too
October
landlord,
X-ray
Roy Daniels,
pictures
pic-
his back.
for a
However
short
appellee opened
They
parts shop,
day.
after
next
time
show-
tures
McNeely, employee
Allen
injury,
Appellee
ed
Vernon
ancient or recent.
Service,
that he
testified
complаin
pain.
Doc- Commercial
continued to
appellee engaged
pictures
time
taken motion
every day
tor
some
treated him
after
ma-
activities around his home
various
giving him
and heat
medication
working
injury. Appellee
nipulative
gradually
was shown
treatments.
stooping
automobile,
under the
complaining
hood of
better,
became
hut was still
down to look under
rear end of
pain
last saw him.
when
Doctor
getting in and out of
automobile and
*4
diagnosis:
due
Dr. Swords’
a
repairing
automobile.
was
shown
also
in
strain,
spasms
muscle
and lesions
in
of the auto-
getting
sidewalk.
In
and out
not
dorsal
did
eleventh
area. Dr. Swords
appellee
carefully.
In bend-
mobile
moved
disability.
anticipate any
permanent
squatted
squat-
usually
partly
ing over he
attorney
appellee’s
wrote a letter to
doctor
making
ted rather
full bend of
than
а
explaining
diagnosis
and his treatments
back.
into
introduced
detail. This letter was
evidence.
introduced into evidence
Also
OPINION
by appellee
was written statement made
a
in which
to
Industrial Accident Board
case
considering
the
In
the
evidence
Board
appellee
opinions
the
of
that
wished
must
mind
stated
we
bear in
that the
making
opinion in
physical
to consider Dr. Swords’
as to
conditions
medical witnesses
compen
the
controlling.
award.
not
are
workmen’s
as
lay
sation cases
witnesses
of
Branch, orthopedic surgeon,
M.
Dr. W.
physical
their
to
condition based on
observa
him
appellee first came
testified that
person
jury
a
will
a
tion of
21,
pain in
complaining of
November
1961
v.
disability.
Jones
back, hip
X-rays
legs.
were
Ass’n., Tex.Civ.App.,
Employers
Texas
Ins.
abnormality. Nerve
and showed no
sensa-
322;
318,
Em
Guerra v. Texas
352 S.W.2d
no muscle
tiоns were
There were
normal.
ployers
Ass’n., Tex.Civ.App.,
Ins.
343 S.W.
spasms
atrophy. Neverthe-
and no muscle
306;
Casualty
Spencer,
v.
Angelina
2d
Co.
complain
appellee continued to
less because
2);
Tex.Civ.App.,
(Syl.
The whether contrary is so to the overwhelm witnesses, evidence Appellee and his five the evidence as to be mani ing weight of open are not including unjust festly is a fact function ap- testify failure to for thеir criticism Appeals. But Civil that fact Court of injury was total and pellee’s extend so does not far as to finding function rule is that such from Appeals a Court substi objec permit not admissible over lay witness is trial findings for those of the court its Exchange Underwriters tute Federal v. tion. appellate might court simply because Tex.Civ.App., 137 S.W.2d Simpson, finding if it had been a different made Casualty Sledge, have Maryland Co. Tex. 136; original trier of facts. Consolidat- Tex.Civ.App., Casualty Baker, ed Ins. Co. v. Estate, 715; King’s In re
150 Tex. appel-
After a careful consideration con- rehearing we are
lant’s motion for original decision
vinced that our
case was correct. for re- motion has also filed a in his motion. no merit
hearing. We see appellee are appellant and
The motions of
both overruled.
GULF, FE RAIL- & SANTA COLORADO COMPANY, Appellant, WAY DeLEON, Appellee.
Reymundo Frausto
No. 3824. Appeals of Texas.
Court
Eastland.
Sept. 10, 1964.
Kehearing Jan. Denied