Yurick v. State Industrial Accident Commission

PER CURIAM.

Defendant, State Industrial Accident Commission, appeals from a judgment based on a jury verdict in favor of plaintiff allowing him permanent partial disability from August 13, 1951, for aggravation of an earlier injury. The complaint alleges that his condition became so aggravated on December 20, 1952 that he has been totally disabled since that date, and that at the time of filing the complaint, he was permanently and totally disabled, or, alternatively, that he was permanently and partially disabled on account of his injuries. It is then averred, as follows:

“That the order dated March 20, 1953 denying plaintiff’s application for increased compensation was erroneous and unjust, and the order dated April 8, 1953, denying plaintiff’s petition for rehearing on said application was erroneous and unjust, and plaintiff is entitled to compensation from and after December 20, 1952, and plaintiff is entitled to an award from said defendant for permanent total disability, or, in the alternative, for permanent partial disability.”

Since the complaint alleges an aggravation as of December 20,1952, and that plaintiff is entitled to compensation from and after said date, it was error for the court to submit to the jury the question of plaintiff’s aggravated condition from August 13, 1951. The jury’s verdict fixing August 13, 1951 as the date of plaintiff’s aggravated condition was likewise erroneous and can not be sustained, for the reason that there is a total variance between the verdict and the complaint.

At the conclusion of the taking of evidence, defendant moved for a directed verdict on the ground that there was insufficient evidence of aggravation warranting submission of the case to the jury. The court did not err in denying the motion because, in our opinion, the record discloses there was substantial evidence of aggravation of plaintiff’s condition from and after December 20, 1952.

Reversed. New trial ordered.