Bishop v. Millers' Indemnity Underwriters , 254 S.W. 411 ( 1923 )

HAMILTON, J.

This suit was instituted by appellant to recover compensation at the rate of $15 per week for a period of 400 weeks under the Workmen’s Compensation Act of Texas (Vernon’s Sayles’ Ann. Civ. St. 1914, art?. 5246h-5246zzzz). Appellant was an employé of Dallas Oil & Refining Company at the time the injuries alleged as a basis for the recovery were inflicted. The Dallas Oil & Refining Company was a subscriber with the appellee,' the Millers’ Indemnity Underwriters, under the Employers’ Liability Act, and carried compensation insurance in the Millers’ Indemnity Underwriters at the time of the accident which resulted in the injuries of which complaint was made. Notice of the accident and injuries was given appellee within due time after they occurred, and appellant filed his claim for compensation for the injuries and loss of time incident thereto with the Industrial Accident Board within six months after the accident happened. The Industrial Accident Board made a final ruling on the claim for compensation, and appellant, being dissatisfied therewith, duly filed suit in the. district court to set it aside. The case was tried to a jury, and was submitted upon special issues, and, in conformity with the answers returned, judgment was rendered decreeing recovery of $297.61, $198.41 of which was apportioned to appellant and $49.61, respectively, to each of the two attorneys who represented him in the litigation. Appellant, having sued for a lump sum in the amount of $6,000 which he alleged he was entitled to recover by reason of total permanent incapacity, prosecutes this appeal from the judgment entered lor tile amount above indicated.

Tbo only witness who testified in tbo caso was tbo appellant himself. While bo way on tbe stand testifying in bis own behalf, and after be bad described tbe injuries bo bad received, and bad given testimony as to bow they afflicted him from tbe time be was hurt until tbe date of the trial, his counsel sought to elicit from him an expression of bis opinion aá to tbe duration of time in tbe future be would be disabled to perform tbe duties pertaining to bis work without suffering pain. Tbe answer thus sought to be expressed was excluded upon objection inappellee’s behalf. This ruling- is complained of, and tbe proposition is advanced that tbe answer should have been permitted because tbe testimony was material and legitimate on tbe issue of tbe length of time that appellant would be entitled to compensation. Wo think tbe proposition is without merit. Tbe witness possessed no expert knowledge, and it is not contended that tbe evidence was. more than tbe expression of an opinion by an ordinary witness, except that it is contended that, because be bad experienced bis sufferings during tbe time of bis disability, be was entitled to declare bis opinion as to tbe length of time in tbe future tbe pains derived from them attending efforts to labor might still be suffered. Since be was in a position to give a clear statement'of facts in tbe nature of a description of bis injuries, and of tbe pains he had suffered, and since be bad none of tbe dualities of an expert on tbe subject about which an expression of opinion was sought, be was in 'the attitude of an ordinary witness, and we think tbe rule excluding opinions of such witnesses under these circumstances clearly applied and controlled. Hence tbe court did not err in excluding tbo answer.

Appellant testified as to certain pains, particularly in a portion of one of bis feet when be walked,. and that be bad suffered this pain and others from tbe 26th day of March, 1920, tbe date be was injured, until tbe 6th day of February, 1922, tbe date of the trial. After be bad recovered from tbe accident sufficient to work, which was 11 months after the injury, be was employed as a night watchman, which occupation, in connection with a related one, it seems be was following at tbe time be received tbe injuries. Almost continuously after be became able to work until tbe date of tbe trial he pursued this occupation, and was employed in it at tbe time of tbe trial. After testifying to such continuous employment since be recovered from tbe accident sufficiently to engage in it, and after testifying also- that bis work was accompanied continuously by pain caused by the injuries be bad received, appel-lee objected to bis testifying that “but for bis extreme poverty and absolute necessities ■ be would not have worked at' all,” and tbe court sustained tbe objection.

Appellant’s second proposition is to tbe effect that tbe court erred in this respect because 'the jury was entitled to have before it bis testimony as to -bis poverty and as to tbe dire necessities under whose propulsion he was compelled to work in passing upon the question of the'length of time that appellee should be required to pay him compensation. Tbe testimony we think would have bebn altogether improper. It would have been calculated to prejudice the jury without subserving tbe purpose of tending to establish as a fact tbe theory that appellant was unable to work. If he was in such physical condition that under the urgings of necessity be could perform the duties of his position, then possibly proof that tbe performance of bis duties actually injured him might have been admissible as tending legitimately to establish tbe contention that, although he actually performed bis duties, be-was incapacitated to discharge them; but we are unable to perceive how proof of bis necessitous condition could constitute any fact properly to be considered by the jury. As a general rule men who regularly perform manual labor do so because it is tbe only honorable means available to them to-supply themselves and their families with tbe necessities of life, and we regard it as a self-evident proposition that mere proof of a circumstance of this nature which attends the lives of the great majority of people can bav’e no potent bearing as proof of inability to work.

As above stated, the facts are undisputed that after tbe passage of about 11 months subsequent to tbe date of tbe injuries appellant re-engaged in the pursuit ,of bis former occupation, of night watchman, which he continuously followed until tbe date of the trial. Practically all of this time (except during brief periods when be did other work) be was employed by tbe firm of Trezevant '& Cochran, in Dallas, and tbe wages paid him by this firm were at least equal to the income be derived from similar work prior to his injury. Tbe testimony showed that during the whole of the period be labored the injury to bis- foot rendered walking difficult and painful, especially in ascending steps; that bis foot was very sore, and that be could not put his whole foot down in walking or standing in a normal way without suffering pain and without swelling in this member setting up from time to time. In tbe light of this testimony, appellee requested a peremptory instruction to tbe effect that tbe jury in no event could find that appellant’s total incapacity extended beyond tbe date on which be began to work for Trezevant & Cochran. This charge was given, and appellant complains that tbe court erred in giving it because it was upon tbe weight of the evidence, invaded the province of the jury, and was not warranted by any evidence. The contention cannot be sustained. We think the proof shows conclusively that appellant was not totally incapacitated for work from the time he engaged in employment with Trezevant & Cochran. The facts that he worked continuously, for this firm after he entered its services doing substantially the same work he had been engaged in before he was hurt, that he discharged his duties completely and satisfactorily, and received as great compensation for his services as he had been paid for similar employment previous to the injury, support this conclusion. Under the Workmen’s Compensation Act a person is totally incapacitated for work when he is disqualified from performing the usual tasks ©f a workman in such way as to enable him to procure and retain employment. Home Life & Accident Co. v. Corsey (Tex. Civ. App.) 216 S. W. 467; Moore v. Peet Bros., 99 Kan. 443, 162 Pac. 295.

The court submitted to the jury the question of whether or not appellant was totally incapacitated for work during any length of time following the accident, and also the issue as to how many weeks such total incapacity; if any, the jury should find continued following the date of the accident. The jury found in response to these issues that appellant was totally incapacitated for a period of 42 */r weeks. Appellant requested the court to instruct the jury in connection with these issues that by the phrase “total incapacity for work” is meant “such disability as would prevent said Bishop from performing substantially or to some material extent any and every part of the business pertaining to his occupation, or such disability as that ordinary care in the preservation of his health would require that he desist from the transaction thereof;” and the court refused to give this instruction. The action of the court in this respect complained of by appellant we deem to be free from sound criticism. In the first place, we think the expression “total incapacity for work” as used in the statute is not such a technical expression as necessarily to require that the court should define it to the jury. Nor is its meaning so fixed in relation to the facts of this case by the terms of the law as to require it. Furthermore, the requested charge does not correctly state the meaning of the term “total incapacity for work” as is to be observed from the meaning of that term above expressed under the authority of the decision cited from which it is substantially taken.

Appellant complains that the court refused to submit various special issues requested by appellant, and makes such complaints the basis of various assignments of error and propositions embodied in his brief. It does not appear 'that appellant excepted to the action of the court in refusing to submit any of such issues, and the record contains no bills of exceptions seasonably taken to the action of the court with reference to refusing such special issues. Appellee objects to any consideration of the propositions complaining that the court refused to submit these issues on the ground that there is an absence of bills of exceptions to the action of the court in refusing the charges. It is contended that under Rev. St. art. 2061 appellant must be held to have acquiesced in the court’s refusing to submit the requested issues, and waived his objection, since that article provides that on appeal the charge is not to be regarded as approved in the absence df exceptions to the failure to submit requested issues specially requested. An examination of the requested charges reveals that they bear the indorsement “refused,” and that this indorsement is officially signed by the trial judge. Under the terms of Rev. St. art. 1974,-as amended by the Thirty-Eifth Legislature in 1917 (Acts 35th Leg. c. 177 [Vernon’s Ann. Oiv. St. Supp. 1918, art. 1974]), the requested charges bearing this indorsement constitute bills of exceptions, and, by the mandatory terms of this statutory provision as it now exists, it is to be conclusively presumed that appellant presented the charges at the proper time, and excepted to the court’s refusing to give them. The objection to our consideration of the propositions based upon the action of the court in this regard accordingly is without merit, and must be overruled. However, what we have said above as an expression of our views of the rights of the parties under the law and the evidence has the necessary effect to dispose of these propositions adversely to appellant’s contentions. No purpose could be served in discussing tljpm, and, after having given them careful consideration, we deem it proper to overrule them without further comment.

There is no reversible error disclosed in the record, and the judgment of the trial 'court is affirmed.