Argonaut Insurance Co. v. Newman

348 S.W.2d 761, 1961 Tex. App. LEXIS 1880
CourtCourt of Appeals of Texas
DecidedJuly 13, 1961
DocketNo. 3882
StatusPublished
Cited by1 cases

This text of 348 S.W.2d 761 (Argonaut Insurance Co. v. Newman) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Argonaut Insurance Co. v. Newman, 348 S.W.2d 761, 1961 Tex. App. LEXIS 1880 (Tex. Ct. App. 1961).

Opinion

McDONALD, Chief Justice.

This is a compensation case. Parties will be referred to as in the Trial Court. Plaintiff alleged injuries to his left leg, left foot, ankle, toes, back, and body in general, and that such injuries resulted in total permanent disability. Trial was to a jury which, in answer to special issues, found that plaintiff was totally and permanently incapacitated to work. The Trial Court entered judgment on the verdict for $11,507 (less $1,150 paid plaintiff in weekly compensation).

Defendant Insurance Carrier appeals on 12 points presenting the following basic contentions:

1) The Trial Court erred in submitting Issues 1 through 8 because the pleadings do not support this submission.
2) The Trial Court erred in rendering judgment for total and permanent disability because affirmative answers to Issues 1, 2 and 3 will not support such judgment.
3) There is no evidence or insufficient evidence to support the submission of Issues 1 through 8.
4) The judgment for total permanent disability has no support or insufficient support [762]*762in the evidence,-the evidence only showing a specific injury to the left foot and toes,
5) The argument of plaintiff’s counsel was improper.
6) Certain instructions given by the Trial Court to the jury were improper.
7) The jury’s verdict is in conflict.

We revert to defendant’s contentions 1 through 4, to the effect that. Issues 1, through 8 have no support in the pleadings or evidence; and that the jury’s findings to such issues will not support a judgment for total permanent disability. In this connection defendant contends that the evidence supports only a finding of specific injury to plaintiff’s left foot and toes.

The jury’s verdict is summarized as follows:

1) The injury to plaintiff’s toes, and foot on 13 November, -1959 naturally resulted in his incapacity.
2) Plaintiff’s incapacity to work is total.
3) Plaintiff’s incapacity to work is permanent.
4), 5), 6), 7), and 8) Not answered.
9) Plaintiff’s injury did not result in total loss of the use of his toes.
10) and 11) Not answered.
12) Plaintiff’s injury did not result in partial loss of the use of his toes.
13) and 14) Not answered.
15) Such partial loss of use is 100%.
16) The injury to plaintiff’s toes extended to and affected his left foot, thereby causing incapacity.
17) The injury to plaintiff’s foot has not resulted in total loss of said foot.
18) and 19) Not answered.
20) Plaintiff will not suffer any partial loss of the use of his left foot.
21), 22), and 23) Not answered.
24) The injury to plaintiff’s foot extended to and affected his left leg, thereby causing incapacity.
25) Plaintiff’s injury has not resulted in total loss of the use of his left leg.
26) and 27) Not answered.
28) Plaintiff’s injury has not resulted in partial loss of the use of such leg.
29), 30) and 31) Not answered.
32) The injury to plaintiff’s leg extended to and affected parts of his body other than the leg.
33) Incapacity to plaintiff’s foot was not caused solely by the loss of use of toes on such foot.
34) Incapacity to plaintiff’s leg was not caused solely by the loss of the use of the foot on such leg.
35) Plaintiff’s incapacity was not caused solely by the loss of use of his left leg.
36) Plaintiff’s incapacity to work was not caused solely by his use or attempted use of his toes.
37) Plaintiff’s incapacity to work was not caused solely by his use or attempted use of his injured foot.

Plaintiff plead that he “accidentally sustained serious and permanent injuries and trauma to his body while working * * *, his injuries naturally resulting in total and permanent disability and incapacity. * * His left foot and ankle were suddenly caught beneath a walk, causing him to receive a broken foot, 2 broken toes, a seriously injured leg, which resulted in serious and disabling injuries to his back and his body in general. * * * These injuries have extended into and have disabled his low back and his body in general * *

The pleadings not only support submission of Issues 1 through 8, but support submission of all issues submitted by the Trial Court. The proof is ample to sustain the jury’s answers to the issues submitted. We think the findings of the jury support [763]*763the judgment of total and permanent disability. Defendant’s real complaint here is embodied in its contention that the evidence supports only a finding of specific injury to his left foot and toes. It is true that his injury on 13 November, 1959 was to his toes and to his left foot. But the plaintiff plead, the jury found, and the evidence is ample to support the finding that the injuries sustained extended and affected other parts of his body; and that plaintiff’s incapacity to work was total and permanent. The record reflects plaintiff was injured on 13 November, 1959. Trial was 3-5 October, 1960. Plaintiff testified he could not work; that his left hip and lower back hurt, as well as his leg and foot; that his situation was growing worse. Defendant paid plaintiff some $1,150 in weekly compensation; and had him treated by Dr. Crossno of Fairfield; Dr. Henry of Dallas; and Dr. Freiberg of Tyler. Dr. DeCharles testified that plaintiff had myo-citis in the leg and hip and that it was disabling ; and that plaintiff is totally disabled at the time of trial from working. Dr. Jones testified he found plaintiff’s cervical sacroiliac “busted” in the area of the right sacrum; that plaintiff was disabled in his back and hip; and that he would not pass the plaintiff for work.

We think the evidence sufficient to sustain the jury’s findings of total and permanent disability. See: Aetna Cas. & Sur. Co. v. Dickinson, Tex.Civ.App., 266 S.W.2d 427, n. r. e.; Texas Emp. Ins. Ass’n v. Trapp, Tex.Civ.App., 258 S.W.2d 112, n. r. e.; American Motorists Ins. Co. v. Black, Tex.Civ.App., 253 S.W.2d 678, n. w. h.; Lumbermen’s Mutual Cas. Co. v. Zinn, Tex. Civ.App., 220 S.W.2d 906, W/E Ref.; Insurance Co. of Texas v. Anderson, Tex.Civ. App., 272 S.W.2d 772, 774, n. r. e.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Argonaut Insurance Company v. Newman
361 S.W.2d 871 (Texas Supreme Court, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
348 S.W.2d 761, 1961 Tex. App. LEXIS 1880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/argonaut-insurance-co-v-newman-texapp-1961.