Travelers' Ins. Co. v. Washington , 1928 Tex. App. LEXIS 384 ( 1928 )

WALKER, J.

This is the second appeal in this case, the first, reported from this court, Travelers’ Insurance Co. v. Washington, 283 S. W. 694, from the Supreme Court, Washington v. Travelers’ Insurance Co., 290 S. W. 738. We refer to those reports for a full and complete statement of the nature of this cause of action. Briefly stated, this is an appeal from a ruling of the Industrial Accident Board, involving Washington’s rights to compensation under our Workmen’s Compensation Act (Vernon’s Ann. Civ. St. 1925, art. 8306 et seq.). On this appeal the ease was pleaded and presented to the jury on the theory, that Washington received a hernia in the due course of his employment. The issues were presented to the jury by the following questions, answered as indicated:

“Special Issue No. 1. Was the plaintiff, George AVashington, injured, while performing his duties in the employment of the Gulf Refining Company, by then and there producing and suffering a hernia?”

The jury answered: “Yes.”

“Special Issue No. 2. Did the said hernia of the said George Washington, plaintiff, exist in any degree prior to the injury for which this suit is filed?”

The jury answered: “No.”

“Special Issue No. 3. Did the said hernia of the plaintiff, George Washington, appear 'suddenly and immediately following the injury?”

The jury answered: “No.”

“Special Issue No. 4. Was the said injury accompanied by pain?”

The jury answered: “Yes.”

•On the answers thus returned, judgment was entered in appellee’s favor. He has accepted the verdict without question and has made no assignment against the findings of the jury. Appellant attacks certain of the • findings as being without support in the evidence, or as being against the great weight and preponderance of the evidence, but accepts the jury’s verdict on question No. 3. Its assignments against the other questions are overruled. We believe the evidence sustains the findings.

On this verdict appellant insists that judgment should have been rendered in its favor and that the judgment in appellee’s favor was non obstante veredicto. We believe this proposition is sound. This was an action based solely on hernia. Appellee sought relief on no other theory. Article 8306, § 12b, Revised Statutes 1925, provides:

“In all claims for hernia resulting from injury sustained in the course of employment, it must be definitely proven to the satisfaction of the board:

“1. That there was an injury resulting in hernia.

“2. That the hernia appeared suddenly and immediately following the injury.

“3. That the hernia did not exist in any degree prior to the injury for which compensation is claimed.

“4. That the injury was accompanied by pain.”

The requirements of this statute were covered by the court’s charge. Appellee could have a recovery only upon a finding in his favor on these four issues. Indemnity Insurance Co. of North America v. Jones (Tex. Civ. App.) 299 S. W. 674; Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084; McPhee & McGinnity Co. v. Industrial Commission of Colorado, 67 Colo. 86, 185 P. 268. It was as essential that the hernia appear “suddenly and immediately fqllowing the injury” as that it occur in the course of his employment, or that- it did not exist in any degree prior to the injury, or that the injury was accompanied by pain. Therefore a finding that the hernia did not appear suddenly and immediately following the injury destroyed his 'cause of action. As this finding was accepted by him and not questioned on this appeal, the evi-denee upon which the finding was returned cannot be reviewed by us. Neither the trial court nor this court has jurisdiction to enter a judgment non obstante veredicto. Appel-lee’s only relief was to challenge this finding,

The judgment of the trial court is reversed, and judgment here rendered in appellant’s favor.

Reversed and rendered.