Traders & General Ins. Co. v. Wright , 1936 Tex. App. LEXIS 697 ( 1936 )

A. N. Wright instituted this suit against Traders General Insurance Company to recover compensation under the Workmen's Compensation Law (Vernon's Ann.Civ.St. art. 8306 et seq.), for injuries alleged to have been sustained by him when he entered an oil tank for the purpose of removing waste material and cleaning the tank. Plaintiff alleged that he was injured by poisonous gas that arose out of the waste and that such injury caused his total and permanent disability. In the alternative, he charged that by reason of the gas entering his lungs a latent and dormant tubercular bacilli was made active and tuberculosis developed in both lungs. He charged that by reason of said matters he had been rendered totally and permanently disabled. Further pleading in the alternative, he prayed that in the event he failed to recover for total and permanent disability that he be awarded judgment for such period of time and at such rate as he showed himself entitled to.

The defendant answered by general demurrer and general denial.

The situation with reference to the special issues submitted, the jury's answer, and judgment is correctly and aptly stated by plaintiff in error, who was the defendant in the trial court, as follows:

"The substance of the findings of the jury in response to the special issues submitted is as follows:

"(1) Defendant in error sustained personal injuries on the date alleged.

"(2) Such injuries were sustained in the course of his employment.

"(3) The employers of defendant in error received notice of such injuries within thirty days from the time the same were sustained.

"(4) That such injuries caused total incapacity for work on the part of defendant in error.

"(5) Such total disability resulted on November 26, 1933.

"(6) Such total disability is permanent.

"(7) Manifest hardship and injustice will result to defendant in error unless plaintiff in error is required to redeem its liability by the payment of a lump sum.

"The jury returned no answers to the issues submitted in substance as follows:

"(1) As to the duration of total incapacity of defendant in error;

"(2) As to whether the injuries resulted in partial incapacity;

"(3) The percentage of partial incapacity;

"(4) As to whether such partial incapacity is permanent;

"(5) The duration of such partial incapacity; the court having instructed the jury, in effect, that said issues need not be answered by them if the previous [relevant] issues as to total and permanent incapacity resulting from said injuries had been answered in the affirmative.

"The court, upon the answers of the jury to the special issues submitted, rendered judgment setting aside the final ruling and award of the Industrial Accident Board and in favor of defendant in error, A. N. Wright, against plaintiff in error, Traders General Insurance Company, for the sum of $5,205, with interest thereon at the rate of six per cent (6%) per annum."

The court defined "partial incapacity" as follows: "By the term ``partial incapacity' or ``partially incapacitated,' wherever it appears in this charge, (it) shall have the following meaning: It shall mean where an employee by reason of an injury sustained in the course of his employment is only able to perform part of his regular labor, or a less remunerative class than he performed prior to his injury, whereby he suffers a depreciation or reduction in his earning capacity."

To which the defendant urged this exception: "The defendant objects and excepts to the definition of the term ``partial incapacity' as used in the court's main charge, for the reason that the court in its main charge and the definition of the term ``partial incapacity' permits a recovery if the injured employee, viz., the plaintiff in this case, is unable to merely perform a part of regular labor of employment, though his capacity to perform the ``ordinary tasks of a workman' has not been lessened, and he may be able to secure and retain employment in work ``reasonably suited to his incapacity and physical condition' at wages equal to or greater than what was paid him before the alleged injury and therefore this would impose upon the insurance company a greater burden than its contract of insurance calls for, for its engagement was to pay compensation in accordance with, but not beyond, the terms of the Workmen's Compensation Act and the trial court in its definition of ``partial incapacity' has judicially amended the Workmen's Compensation Act so as to permit a recovery under the aforesaid circumstances."

The gist of the objection is that under the definition given by the court the jury was authorized to find plaintiff partially incapacitated, though he be able to secure and retain employment reasonably suited to his condition at wages equal to or greater than paid him before the injury. The definition distinctly requires that the injury in order to result in "partial incapacity" must result in "a depreciation of reduction in his earning capacity." The definition was not subject to the objection made. See Travelers' Ins. Co. v. Richmond (Tex.Com.App.) 291 S.W. 1085, 1087.

Special issue No. 3 reads as follows: "Do you find from a preponderance of the evidence that the said W. M. Story, John F. Friebele and C. C. Duffey, or either of them, through their agents or representatives, received notice of said injuries, if any, within thirty days from November 21, 1933? Answer ``Yes' or ``No.'"

The jury answered it, "Yes." It was objected to as (a) duplicitous; (b) multifarious; (c) "said issue is duplicitous and multifarious in that it submits to the jury as to whether or not either W. M. Story, John F. Friebele, and C. C. Duffey, all, or either, received notice of the injuries alleged to have been received by the plaintiff, and it further submits to the jury two questions in one, viz., whether said employers received personal notice, or whether they received it through their agents or representatives." The persons named were plaintiff's employers. Another employee was J. C. Pee, who was plaintiff's foreman, or boss. Plaintiff testified he reported the fact of his injury to Pye the next day after the injury. An order for a physician for plaintiff dated December 9, 1933, signed by Pye, was introduced in evidence. These facts were not disputed. It appears to be undisputed that plaintiff's foreman, who was the agent of plaintiff's employers, received notice of plaintiff's alleged injuries within thirty days from November 21, 1933, but, regardless of this, we do not believe the issue can properly be interpreted as inquiring whether said employers received personal notice. The real question asked was whether the employers received through an agent notice of plaintiff's injury within thirty days. Moreover, we do not believe the issue is either duplicitous or multifarious. Speer's Special Issues, § 187, p. 243, et seq.; Texas Emp. Ins. Ass'n v. Pearson (Tex.Civ.App.) 67 S.W.2d 630.

The question of partial incapacity was submitted as follows:

"If you have answered special issue No. 6 in the negative, then you will answer special issue No. 8 but if you have answered special issue No. 6 in the affirmative, then you need not answer special issue No. 8.

"Special issue No. 8. Do you find from a preponderance of the evidence that the injuries, if any, sustained by plaintiff on November 21, 1933, resulted in the partial incapacity of plaintiff, A. N. Wright, for any length of time? Answer yes or No."

The defendant objected to the charge generally because it failed to submit the affirmative defenses of the defendant. It urged the following objection to the issue: "The defendant further objects and excepts to the submission of special issue No. 8 of the court's main charge in the form, as submitted, for the reason that it has attached thereto a preamble which permits the jury to answer issue No. 8 only in the event they have answered special issue No. 4 in the affirmative and the submission of such special issue to the jury is not an unqualified and unconditional submission of such issue to the jury as the defendant is entitled to under the law."

Whether or not the exception was otherwise correct, it certainly challenged this portion of the charge because it was not an unqualified and unconditional submission of the issue of partial incapacity to the jury. This was a defensive issue which, if answered favorably to the insurance company, would result in a reduction of the amount of plaintiff's recovery.

In obedience to the court's instructions, the jury, having answered special issue No. 6, "Yes" (that plaintiff's total disability was permanent), did not answer No. 8.

Decisions holding that a conditional submission of the issue of partial incapacity deprives the defendant of an affirmative submission of such defense and constitutes reversible error are collated in Traders General Ins. Co. v. Shanks (Tex.Civ.App.) 83 S.W.2d 781, 782. The point here presented was definitely decided in that case and a writ of error was refused by the Supreme Court. To the same effect are the following recent decisions: Traders General Ins. Co. v. Wimberly (Tex. Civ. App.) 85 S.W.2d 343; Texas Ind. Ins. Co. v. Head (Tex.Civ.App.)89 S.W.2d 283.

A general denial is sufficient to raise the issue of partial incapacity when total incapacity is alleged. Traders General Ins. Co. v. Babb (Tex.Civ App.) 83 S.W.2d 778; Texas Emp. Ins. Ass'n v. Horn (Tex. Civ. App.) 75 S.W.2d 301; Indemnity Ins. Co. of North America v. Boland (Tex. Civ. App.) 31 S.W.2d 51.8; Southern Kansas Ry. Co. of Texas v. Wallace (Tex.Com.App.) 206 S.W. 505, 507.

We think the issue of partial incapacity was raised by the evidence. Plaintiff's witness Dr. Parmley testified: "In my opinion he isn't able to do any hard work. He might do bookkeeping, or things like that if the place is well ventilated."

The plaintiff testified:

"Q. Have you made any money since the 21st of November, 1933? A. Yes.

"Q. How much have you made? A. Since the 1st day of May I have averaged about $30.00 a month.

"Q. For what is that — where did you get that? A. From the local Oil Field Workers' Union.

"Q. You are Secretary of that? A. Yes.

"Q. You ran for County Treasurer? A. Yes.

"Q. You made a campaign of that county down there? A. Yes.

"Q. What kind and character of work is that you have with the local Oil Field Labor Union? A. Bookkeeping work and secretarial work.

"Q. How much time — how many hours a week do you have to spend at that job? A. Two or three hours a day, six days a week."

Dr. McKnight, a witness for defendant, testified as follows: "He wasn't totally and permanently disabled, from my standpoint. He would always be tubercular, but with good care I shouldn't see why he couldn't go ahead and do a moderate amount of work, taking care of himself, of course. He should have done that before."

There is a conflict in the decisions on the point here decided, but we think the great weight of authority sustains the proposition that in a case of this character it is error to submit the issue of partial incapacity conditionally, that is, to make an answer thereto contingent upon a certain answer to the issues on total or permanent incapacity.

In the case of Texas Employers' Ins. Ass'n v. Hilderbrandt (Tex. Civ. App.) 80 S.W.2d 1031, 1035, in which a contrary decision was made, a writ of error has been granted.

For other decisions bearing on the question here decided, see Texas Indemnity Ins. Co. v. Allison (Tex.Civ.App.) 75 S.W.2d 999; Morrison v. Antwine (Tex.Civ.App.) 51 S.W.2d 820; Pedigo Pedigo v. Croom (Tex.Civ.App.) 37 S.W.2d 1074; Northern Texas Traction Co. v. Evans,108 Tex. 356, 193 S.W. 1067; Galveston, H. S. A. Ry. Co. v. Washington, 94 Tex. 510, 63 S.W. 534; Montrief Montrief v. Bragg (Tex.Com.App.) 2 S.W.2d 276; Texas Emp. Ins. Ass'n v. Kelly (Tex. Civ. App.) 71 S.W.2d 901; Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517; Commercial Standard Ins. Co. v. Noack (Tex.Com.App.) 62 S.W.2d 72; U.S. Fidelity Guaranty Co. v. Baker (Tex.Civ.App.) 65 S.W.2d 344; Traders General Ins. Co. v. Forrest (Tex.Civ.App.) 78 S.W.2d 987.

The issues with reference to temporary total and temporary partial incapacity were likewise conditionally submitted and were not answered. That which has been said with reference to the conditional submission of the issue of partial incapacity is applicable to them. Defendant's fourth and fifth propositions are sustained. Traders General Ins. Co. v. Forrest (Tex.Civ.App.) 78 S.W.2d 987; Texas Indemnity Ins. Co. v. Allison (Tex.Civ.App.) 75 S.W.2d 999; Texas Emp. Ins. Ass'n v. Kelly (Tex.Civ.App.) 71 S.W.2d 901; Texas Emp. Ins. Ass'n v. Horn (Tex. Civ. App.) 75 S.W.2d 301.

No error is disclosed by defendant's propositions 12 to 16, both inclusive. They complain of the refusal of the court to submit issues requested by the defendant. The requested issue made the basis of complaint under proposition No. 12 is illustrative of the contention made under propositions 13, 14, and 15. That requested issue was: "Do you find, from a preponderance of the evidence, that the tuberculosis, if any, with which the plaintiff was suffering prior to November 21, 1933, did not contribute to the plaintiff's ``total incapacity,' if any he has?" The material question to be submitted was not whether such disease contributed to plaintiff's incapacity, but Was whether such pre-existing disease was the sole cause of his incapacity. The burden of proof on such issue was on the plaintiff.

In Armour Co. v. Tomlin (Tex.Com.App.) 60 S.W.2d 204, 206, opinion by Judge Critz, it was said: "compensation [for personal injury] will not be denied, notwithstanding such injury is aggravated or enhanced by the effects of disease existing at the time or afterwards occurring." The court further held that the question as to the effect of such disease was "whether or not all plaintiff's injuries resulted from causes not connected with the collision, or bearing on whether or not her injuries resulted solely from such other causes." It was further stated that the requested issue, which did not require a determination of whether the physical infirmity of plaintiff was caused solely and alone by the injury, would not have constituted a submission of a defensive issue, if it had been given.

To the same effect is the decision in Commercial Standard Ins. Co. v. Noack (Tex.Com.App.) 62 S.W.2d 72, 74. In that case the defense was that plaintiff's incapacity was occasioned by a heart disease. The court held that the determinative defensive issue was whether plaintiff's injuries resulted solely from such disease. There it was expressly declared that the established rule "that liability for damages for personal injury cannot be avoided by merely showing that the person injured was not a well person at the time of injury" is applicable to suits under our Workmen's Compensation Law. See, also, Armour Co. v. Tomlin (Tex.Civ.App.) 42 S.W.2d 634; U.S. Fidelity Guaranty Co. v. Baker (Tex.Civ.App.) 65 S.W.2d 344; Driess v. Frederick, 73 Tex. 460,11 S.W. 493.

By proposition No. 16 defendant complains of the refusal of a requested issue as to whether the pre-existing tuberculosis was the sole cause of plaintiff's incapacity to work. This, we think, was the real defensive issue raised by the evidence and by the general denial. Commercial Standard Ins. Co. v. Noack, supra. But the defendant (plaintiff in error) overlooks the fact that this issue was submitted by the court in the exact language of the requested issue, by the court's special issue No. 19. The requested issue having been given, of course, no error is shown. Southern Kansas Ry. Co. of Texas v. Wallace (Tex.Com.App.) 206 S.W. 505; Northern Texas Traction Co. v. Evans, 108 Tex. 356, 193 S.W. 1067; Indemnity Ins. Co. v. Boland (Tex.Civ.App.) 31 S.W.2d 518.

Plaintiff testified that he went to Dr. Parmley, not for treatment, but for an examination in order that the doctor might testify in the case. Dr. Parmley testified as to his opinion of the condition of plaintiff and the extent of his disability. He said that his opinion was based, among other things, on subjective symptoms, the history of the case, and complaint made to the doctor by the plaintiff. When it became known that said doctor's testimony was based, at least in part, upon the matters stated, defendant moved the court to withdraw the testimony based thereon from the jury. The action of the court in overruling this motion was error.

"* * * statements of subjective symptoms or past suffering made to a physician employed to make an examination for the purpose of testifying as a witness in the case, and not in course of treatment, are inadmissible * * *." 17 Tex.Jur. § 245, p. 588; Texas Employers' Ins. Ass'n v. Wallace (Tex.Civ.App.) 70 S.W.2d 832; Gaines v. Stewart (Tex. Civ. App.) 57 S.W.2d 207.

Other questions presented need not arise again, but in view of another trial we direct attention to the rule declaring that X-ray photographs of an injured person are not admissible "without proof that they are correct portrayals of the injuries." 17 Tex.Jur. § 317, p. 736; 22 C.J. § 118, p. 916.

For the errors discussed the judgment of the district court is reversed and remanded.