National Indemnity Underwriters of America v. Washington , 1938 Tex. App. LEXIS 199 ( 1938 )

LOONEY, Justice.

This is an appeal from an award by the Industrial Accident Board, hence arose under the Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq. The parties will be referred to as in the court below. Earnest Washington, employee of Southern Lead Company, subscriber, in the course of employment, accidentally stepped into a vat of molten lead, severely burning his right foot, especially near the ankle, and more or less severely above the ankle but below the knee. The National Indemnity Underwriters of America, defendant, was the insurance carrier.

The case was submitted to the jury on the theory that, plaintiff’s right leg, in its entirety, was involved. The jury found that he suffered 28 weeks of total disability (at $10.90 per week); also suffered 33⅛ percent loss of the use of his leg for 208 weeks (reduced by remittitur to 172 weeks) at $3.63 per week, making a total of $930.-12, for which judgment was rendered, resulting in this appeal by writ of error.

The main contention of the defendant is, that the theory on which the case was submitted — that is, as involving injury to plaintiffs right leg, as distinguished from injury to his foot — was not authorized by either the pleadings or evidence. After a careful examination of the pleadings and the evidence bearing upon this issue, we have reached the conclusion that both the pleadings and evidence justified the submission. In view of the record, we cannot say that it reveals no evidence authorizing the submission or justifying the findings of the jury.

Another contention is that, in several respects the court’s charge was upon the weight of the evidence. We. do- not think so. By apt phraseology the court seems to have been meticulous in efforts to avoid commission of the error assigned.

Defendant contends further that the court committed fatal error in failing to submit the case on the theory of a foot injury alone. Defendant laid the basis of this contention by simply objecting to the court’s charge, on the ground that both the pleadings and evidence confined plaintiff’s injury to his right foot, and, in this connection, requested the court to prepare and submit to the jury, in lieu of the issue presented in the charge, a proper issue inquiring as to a partial loss of the use of plaintiff’s right foot. But, defendant failed to accompany this request with a correctly prepared issue, in such form as that the court could have indorsed thereon either “given” or “refused”.

Objections to a charge are designed to reach errors of commission in the charge as prepared; errors of omission should be taken advantage of by requested issues correctly prepared. The following authorities sustain this doctrine: Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Harris v. Thornton’s Department Store, Tex.Civ.App., 94 S.W.2d 849; Southern Underwriters v. Sanders, Tex.Civ.App., 110 S.W.2d 1258.

Judgment of the court below is affirmed.