Employers' Liability Assur. Corp. v. Manning , 1945 Tex. App. LEXIS 495 ( 1945 )

This is a compensation case, parties hereinafter designated as in the trial court. Plaintiff Manning was an employe of Hap Morse Bowling Alleys, subscriber, and defendant was such employer's compensation insurer. The suit arose by way of plaintiffs appeal from a final award of the Industrial Accident Board; the injuries alleged and developed by the evidence relating only to his right and left legs, defendant interposing general denial. Upon jury trial and verdict in response to special issues, judgment was rendered for plaintiff and against defendant for sums aggregating more than $1,000. In doing so, the court treated findings 5, 6 and 6-a, as entitling plaintiff to compensation for an injury to his left leg at or above the knee.

Summarized and numbered according to issues submitted in the charge, the jury found (1) plaintiff sustained accidental personal injuries on March 10, 1943, whlie working in the course of his employment; (2) such injuries did not result in total incapacity of his left leg; (4) he sustained partial incapacity of left leg as a natural result of the injuries; (5) such partial incapacity in left leg commenced March 10, 1943; (6) partial incapacity in left leg will continue for a period of five years; (6-a) partial incapacity in such leg is 60%; (7) plaintiff did not sustain total incapacity of his right leg as natural result of the injuries; (9) he sustained partial incapacity of right leg as natural result of the injuries; (10) partial incapacity of such leg commenced March 10, 1943; (11) partial incapacity in right leg will continue for a period of one year; (11-a) the partial incapacity in such leg was 50%; (12) plaintiff had not worked in the employment at which he was working at time of injury substantially the whole of the year immediately preceding date of injury; (14) there was not another employe of the same class as plaintiff who had worked substantially the whole of the year immediately preceding March 10, 1943 in the same or similar employment, either in the same or a neighboring place; (16) $20 per week was the average weekly wage of plaintiff which the jury deemed just and fair to both parties.

In due time defendant filed motion to disregard findings 14 and 16 because without support in the evidence; and as a consequence, plaintiff's right of recovery should be predicated upon the minimum compensation provided by law, viz.: $7 per week. Insurer further moved the court to construe finding 6 as legally effective only for 125 weeks from date of injury, because the uncontroverted evidence showed that the partial incapacity in plaintiff's left leg was confined to that portion of the limb below the knee; in other words, as establishing a foot instead of a leg injury. Above comprise the gist of appellant's thirteen points, additional to the contention that all jury answers to issues 4, 5, 6 and 6-a (relating to the left leg), also 14 and 16, are against the great weight and preponderance of the evidence.

It will be noted that the portion of plaintiff's right leg affected by the injuries is not material here, since the jury found partial disability to that member has continued for only one year (52 weeks); but the jury finding of five-year duration of disability to the left leg was reduced by the court to 200 weeks, allowing compensation as for loss of a lower limb or loss of use thereof; Art. 8306, Sec. 12.

Tony Manning, aged 60, a resident of Waco some fifteen years, came to Dallas February 1943; went down to the particular bowling alley on the evening of March 10, and applied for a job. He had never been in a bowling alley before, no experience in setting pins, but was hired for such work. His duties were to set the pins and then move to a side rail, keeping feet out of the way as the ball came down. Later in the evening a rolling ball caught him in the runway setting pins, knocking him off his feet, the ball striking left leg, pins hitting both legs. He stayed on until closing time, didn't feel like going back the next night, but went anyhow, doing similar work, when he quit on account of claimed injuries. There was no hourly or daily wage scale for the job of setting pins; the compensation being figured on a percentage basis, dependent upon games played; or, in plaintiff's words, "If you don't set no pins, you don't get no pay." He testified to working about four hours each of the evenings and was paid around $6. In May 1943, plaintiff started to a training school on Ross Avenue preparatory to employment with North American Aviation, where he later worked at 60 cents per hour, then 80 cents, until sometime in November when he had to check out, again claiming inability to stand on feet. Some weeks he would work 54, 60 or 72 hours for North American, getting time-and-a-half for all hours over 40.

At Waco prior to February 1943, plaintiff did market work, getting 25 to 30 cents per hour for an eight to ten hour day; his last employment being at Plaza Fish Market, drawing $21 per week.

Several other pin setters were working at the bowling alley while plaintiff was there, but he did not know their names. We quote further pertinent testimony of plaintiff at the trial (March 1944):

"Q. Did you do any bowling alley work for as much as three hundred days or close to or near three hundred days in the year before you were injured, working for Hap Morse? A. No sir, March 10th and 11th are the only two days I was ever in the bowling work.

"Q. And you were not regularly employed by any other concern? A. No sir.

"Q. Doing similar work in the year immediately preceding before this injury? A. No. sir.

"Q. Do you know anybody in Dallas County or the neighboring vicinity who was doing any type of similar work who worked as much as three hundred days a year preceding the date of your injury? A. No, I don't. * * *

"Q. When you moved up here to Dallas from Waco did you know what bowling alleys were in the City of Dallas? A. I never heard of any bowing alleys before in my life until I went into that one.

"Q. When you came to Dallas you didn't know what bowling alleys were here? A. I didn't know what bowling alleys were here.

"Q. And you didn't know what alleys were operating? A. No sir.

"Q. And you went over to Hap Morse's place on Young Street and got a job? A. Yes sir.

"Q. But you didn't know how long that alley had been down there operating, did you? A. No sir.

"Q. Did you know whether they had been operating as long as five years or not? A. No sir, I couldn't tell whether it had been operating thirty days before that.

"Q. Or one year, or three years, or any other time? A. I couldn't tell you anything about it."

Defendant offered no testimony bearing on "average weekly wages" (Art. 8309, Sec. 1, subs. 2 and 3), and apparently there was no real controversy in the trial court relative thereto. We overrule appellant's contention that above testimony is insufficient to raise the issue of applicability of subdivision 3. Where, as here, this fact question does not appear seriously contested, cases uniformly hold that slight evidence is sufficient to discharge plaintiff's negative burden in such regard. Negative testimony under proper circumstances has probative force. 17 T. J., Sections 120, 408, pp. 358 and 906; Sloan v. Sloan, Tex. Civ. App.32 S.W.2d 513; Dixon v. Texas P. R. Co., Tex.Civ.App. 164 S.W.2d 252, writ refused. In Traders General Ins. Co. v. Crouch, Tex. Civ. App.113 S.W.2d 650, 654, Syl. 6, similar evidence being elicited from witnesses, the court held: "There was no effort made by appellant to disprove what these witnesses had said, and from the nature of the facts to be established we think the testimony offered was sufficient to support the presumptive finding of the court that the fact was established. Article 2190, Rev.Civ.Statutes, as amended, Vernon's Ann.Civ.St., art. 2190; Federal Underwriters Exchange v. Stewart, Tex.Civ.App. 109 S.W.2d 1031, 1033; 23 C.J., p. 27, § 1762. In the Stewart case, last cited, it appears, as in the instant case, that the insurance carrier made no effort to disprove the testimony offered by employee; discussing the sufficiency of the proof, the court said: ``It occurs to us that where there is no real controversy over the matter in the trial court, very slight evidence will be sufficient to discharge this burden.'" See also Service Mutual Ins. Co. v. White, Tex.Civ.App. 138 S.W.2d 273; Federal Underwriters Exchange v. Arnold, Tex.Civ.App. 127 S.W.2d 972; Traders General Ins. Co. v. Huntsman, Tex.Civ.App. 125 S.W.2d 431; Southern Underwriters v. Boswell, Tex.Civ.App. 141 S.W.2d 442, affirmed by Supreme Court, 138 Tex. 255, 158 S.W.2d 280; American Surety Co. v. Underwood, Tex.Civ.App. 74 S.W.2d 551; Federal Underwriters Exchange v. Porterfield, Tex.Civ.App. 182 S.W.2d 847.

Likewise appellant points to no evidence in support of issue 16, in that the record fails to disclose with any exactness plaintiff's earnings during the year preceding injury. We gather from the cited cases that amount of earnings over such antecedent period is a proper but not an essential subject of inquiry in the trial court. Texas Employers' Ins. Ass'n v. Van Pelt, Tex.Civ.App. 68 S.W.2d 514; Traders General Ins. Co. v. Bulis, 129 Tex. 362, 104 S.W.2d 488; American Surety Co. v. Ritchie, Tex.Civ.App. 182 S.W.2d 501. On the other hand, we think the extreme brevity of plaintiff's employment, the piecemeal nature of his work and wage scale, presents a classic setting for application of Section 3 of the statute. Surely this is a case of "other good and sufficient reasons", and impracticability of computing "average weekly wages" under Sections 1 and 2.

Appellant argues with equal vigor the absence of testimony relative to an injury at or above the left knee; urging that the court erred in refusing to confine the duration thereof to a maximum of 125 weeks as for a below-the-knee (or foot) disability. In view of the pleading, manner of submission and testimony as a whole, we conclude that the construction given by the trial court to finding No. 6 was correct and supports a recovery of compensation for 200 weeks, as for an injury at or above the knee. Plaintiff fully alleged injuries to both right and left leg, and all issues relating thereto were so framed. Defendant's only pleading was a general demurrer and denial, not requesting submission of any issues or explanatory instructions. No definition of "leg" was given or requested, and it is to be presumed that the jury applied to the issues the meaning contemplated by Art. 8306, Sec. 12, viz.: An injury to said member beginning at or above the knee.

While plaintiff testified that the twelve-pound ball struck his left leg at a point some four to seven inches below the knee-cap and in the shinbone area, directly to be inferred from his whole narrative is that the entire limb was affected. The blow "knocked my feet from under me", ball hitting left leg and pins on both legs; "after the accident happened my legs were dead, it seemed like it was dead for a good while when it began to come to life. I thought the bone was crushed all to pieces the way it hurt and up to now I can stand on my feet a little while and that bone all down there feels like it is going to bust open." Plaintiff spoke of a constant limp in walking, and ease from pain only when "lying down and kind of elevating my feet by night. As long as I am standing on my feet my legs hurt me. If I make a step, it seems like there is a pressure in that bone inside that causes me to limp. I can't help it." He testified to no such trouble before the accident, but of employment difficulties since, because unable to stand on feet; of quitting North American for such reason, also jobs at a grocery store and produce market among others. The jury observed plaintiff's manner of walking, inclusive of visible bruises and discolorations at site of injury; J. B. Manning, brother, stating that he limped badly after March 10, 1943.

Defendant offered no testimony contradictory to that of plaintiff concerning the extent, nature or duration of said injuries. That the blow sustained by plaintiff was actually between knee and ankle is not thereby conclusive of a below-the-knee injury. The only question for our determination is whether, as a result thereof, plaintiff's left leg was affected at or above the knee. Maryland Cas. Co. v. Donnelly, Tex.Civ.App. 50 S.W.2d 388. We conclude that the record is not without testimony bearing upon all of these asserted leg injuries, to which issues the jury gave affirmative answers. In this connection, defendant, by pleading and defensive issues, could have well raised the question of a foot injury alone; in which event plaintiff would have suffered a total defeat, had the jury found adversely on his sole claim of a leg injury. However, insurer did not choose to do so, and, as already stated, we conclude the jury finding of partial incapacity in and to the particular member is substantiated by record testimony, both direct and circumstantial. National Indemnity Underwriters v. Washington, Tex.Civ.App. 119 S.W.2d 1071.

The judgment under review must be affirmed.