*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 substance 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 appellee 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 loaders. 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. Appeals 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 pull 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 January 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 into 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 easier. 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 baseball 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 applications 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 employment 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 complain 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 a 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 tions 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. 310 S.W.2d 682 pain gave him the benefit the doctor Villa, Co. Commercial Ins. v. Standard mid- diagnosed his trouble as doubt 627; Tex.Civ.App., Insurance 313 S.W.2d sprain degree. of minimal Anderson, v. Tex.Civ. of Texas 772; App., 272 Traders & General S.W.2d Branch from his case record of Dr. read Daniel, Tex.Civ.App., 131 Insurance Co. v. quit January as “Has follows: 276; Employers Ins. Ass’n. job working enough wasn’t because he 931; Hevolow, Tex.Civ.App., 136 S.W.2d v. patient the weather had lot stated a Harris, Reciprocal Tex. Oilmen’s Ass’n. v. According it.” Doctor’s to do with Civ.App., 293 S.W. 580. good also told him that record company jobs come with the purpose It useful would serve no any according get of them and didn’t say sitting that had we we were to if records, going that into Doctor’s made jury might in this we have as a type in that parts business because Special answer to Issue No. a different any down time he could sit he want- business actually jury. made 4 Tex. than that sat and relaxed a and when he down ed to judg In order reverse this Jur. felt minute he fine. we must go we must much further: ment considering all the evi after last be convinced time Brandi saw jury’s is so con answer X-rays IS, again dence tak- October weight overwhelming opinion trary to the there had been In the Doctor’s en. unjust. manifestly We be condition. evidence change no (find 445; Tex. Em Civ.App., find- 46 S.W.2d make such ourselves unable Brock, lay ployers’ Ass’n Ins. obviously believed the ing. The Tex. Stowell v. prerogative. (Tex.Com.App.); jury’s That was witnesses. Ass’n, Tex.Civ.App., 259 support Employers’ Ins. testimony to is sufficient There exceptions to No. 5. S.W. 317. There are Special Issue jury’s answer to example, has lost the rule. For one who con on pro and Many can cited cases certainly permitted an to testi arm would sufficiency the evi- question of fy injury was But that his It would verdict. dence to sustain presented such situation here. a de- impossible give be difficult if not would rule explanation of the which tailed rule Notwithstanding determined Each case must be fit all cases. expressing prohibiting witness from particular evi- separately according to the per injuries are total presented. dence manent, it is well factual settled *5 of a claimant other alone, among Appellant cites others lay witnesses, jury finding will Vineyard, Ass’n. v. Employers Ins. in Texas may permanent disability. The That case Tex.Civ.App., 316 S.W.2d reasonably infer disa total and period years point here. For is not bility from circumstantial evidence. And of trial injury the time following though lay may true be this is evidence jobs and Vineyard continuously good held testimony medical ex contradicted pay. increases promotions and received Helstrom, perts. Travelers Inc. Co. v. Tex. presented in this circumstances are No such e.; Civ.App., 321, n. r. 351 S.W.2d err. ref. case. Baker, Casualty Consolidated Ins. Co. v. 706, Tex.Civ.App., is af- 297 S.W.2d err. ref. judgment of trial court The e.; r. The Ins. Co. Ander firmed. n. v. son, Tex.Civ.App., 772, 272 S.W.2d err. REHEARING ON e.; Casualty Surety ref. n. r. Western & Mueller, Tex.Civ.App., Co. v. 169 S.W.2d rehearing appellant cites In its motion m.; 223, err. ref. w. o. American Motorists Lin The Travelers Insurance Co. v. us to Tex.Civ.App., Black, 253 797, Ins. Co. v. S.W. Tex.Civ.App., 368 S.W.2d der, 678, hist.; Lumbermen’s Mutual no wr. earnestly argues that since no one testified Zinn, Tex.Civ.App., Casualty 220 perma Co. v. injuries were total that Wade’s ref.; Lott v. American S.W.2d 906 err. finding in error in nent we were Y., Tex.Civ.App., Surety Co. of N. S.W. uphold sufficient to evidence was hist. It is 2d no wr. remembered cited as in now verdict. In the case Compensation Workmen’s Act testimony lay witness only the before us liberally construed in favor of the plaintiff. in behalf of es was offered Trinity Hargrove v. Universal case, however, claimant. there was this Co., 152 Tex. S.W.2d 73. presented by appellant medi Ins. favorable cal witnesses. determination of

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 their 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