Hartford Accident & Indemnity Co. v. Williams

516 S.W.2d 425, 1974 Tex. App. LEXIS 2745
CourtCourt of Appeals of Texas
DecidedOctober 31, 1974
Docket8446
StatusPublished
Cited by12 cases

This text of 516 S.W.2d 425 (Hartford Accident & Indemnity Co. v. Williams) 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
Hartford Accident & Indemnity Co. v. Williams, 516 S.W.2d 425, 1974 Tex. App. LEXIS 2745 (Tex. Ct. App. 1974).

Opinion

ROBINSON, Justice.

The trial court entered judgment on the jury verdict for total and permanent incapacity as a result of injuries suffered by plaintiff when his hand was pulled into a meat auger in the course of his employment. Affirmed.

By the first sixteen points of error defendant insurance company contends there is no evidence and insufficient evidence to support jury findings that plaintiff Franklin L. Williams sustained an accidental injury to his body on or about June 1, 1972, which resulted in total and permanent incapacity, that plaintiffs injury was not confined to his right thumb and index finger, hand or arm, and that plaintiff’s incapacity was not caused solely by the loss of use of his right thumb and index finger, hand, or arm.

Williams testified that on June 1, 1972, as an employee of Missouri Beef Packers, he was using a hook to clean out the auger of a large machine used to transfer hamburger meat into boxes. The auger caught the meat hook, pulling his hand into the machine and pulling Williams over the top of the auger until his shoulder was up against the bottom of the auger bin. Williams thought that his feet were lifted off the ground. He was taken to the hospital where surgery was performed for severe injuries to his thumb and index finger. He remained in the hospital from June 1 to June 5, and from June 9 to June 16, the second time for an infection that developed in the wound. Later in the summer from August 28 to August 31, he returned to the hospital for further surgery. Dr. Norbert Bublis, an orthopedic surgeon, was his physician at all times. Williams testified that when he went into the hospital the second time on June 9, he told Dr. Bublis that he was suffering from pain in his shoulder. He said that he continued to see Dr. Bublis periodically at which times he mentioned the shoulder to the doctor, but the doctor would examine and treat only Williams’ finger and thumb. Dr. Bublis first made notes of the pain in plaintiff’s shoulder on September 26, 1972. On November 11, Dr. Bublis examined plaintiff’s arm, shoulder and neck, and found tenderness over the greater tubercle of the humerous. Thereafter his shoulder was X-rayed for the first time and the X-ray revealed increased density over the greater tubercle of the humerous. Dr. Bublis testified that that could account for the pain in Williams’ shoulder. Dr. Bublis tested Williams for gout • and, finding at the highest point in the normal range on the serum uric acid test, gave Williams gout medicine although he did not make a diagnosis of gout. Dr. Bublis testified that traumatic arthritis and gout may look similar; that traumatic arthritis is permanent; that it could be caused by a severe pulling or jerking of the joint, and that ordinarily such arthritis would show up on an X-ray about two months after the trauma. He was unable to make a diagnosis of traumatic arthritis or to correlate the neck and shoulder complaints with the injury in part because according to his recollection the complaints came at such a late date. However, he could not rule out that Williams had traumatic arthritis in his shoulder.

*427 Because of the pain in his hand, Williams was unable to continue working for Missouri Beef Packers. He • was told by Dr. Bublis to quit and he did quit. He went to work doing general farm work in January of 1973. He cannot use his hand to drive the tractors even though they have power steering because the vibration makes it ache. He is able to drive a pickup with one hand. His right hand and shoulder bother him as he does farm work. Although his shoulder gets particularly tight in winter, it constantly bothers him and he does not know how long he can keep on as he is doing. He testified that a job like feeding, which should take him an hour and a half, would take half a day. Williams’ employer, L. T. Woods, testified that he had had several conversations in which he told Williams that if he did not make him a hand he was going to have to let him go, but that in his, Woods, present condition he felt as though he were going to keep him on.

Williams has a tenth grade education and no specialized training, his wife is not employed, and his children are not old enough to work.

In weighing testimony, the jury may accept all, part or none of the testimony of any one witness, or it may accept part of one witness’s testimony and part of another’s. Blackburn v. Cooner, 509 S.W.2d 641 (Tex.Civ.App.—Amarillo 1974, no writ), and cases cited therein. In reaching its conclusion, the jury may blend the evidence and draw reasonable inferences therefrom. Texas Employers’ Ins. Association v. Stephenson, 496 S.W.2d 184 (Tex.Civ.App.—Amarillo 1973, no writ).

In the present case, the jury heard evidence that Williams had not had a problem with his shoulder before the injury, that he was jerked up and over the meat auger, coming to rest with two of his fingers in the auger and his shoulder against the auger bin. Williams testified to the onset of pain in his shoulder which he said he mentioned to Dr. Bublis during the June 9 hospitalization, but which the doctor did not specifically examine, treat, and X-ray until more than four months after the original shoulder complaints. Dr. Bublis testified that the impairment of the shoulder was not an extension of the injury to the hand. He testified as to the nature and cause of traumatic arthritis and could not rule out traumatic arthritis in Williams’ shoulder.

The evidence presents scientific generalizations testified to by a medical expert and a logical, traceable sequence of events resulting in disability. Such evidence is sufficient to submit the question of causation to the jury. Parker v. Employers Mutual Liability Ins. Co. of Wis., 440 S.W.2d 43 (Tex.1969) ; Colonial Penn Franklin Insurance Co. v. Mayfield, 508 S.W.2d 449 (Tex.Civ.App.— Amarillo 1974, writ ref’d n.r.e.).

After a careful consideration of all the evidence including that contrary to the verdict as well as that in support of the verdict, we are of the opinion that the evidence is sufficient to support the jury findings that plaintiff Williams sustained an injury to his body on June 1, 1972, which was not confined to his right thumb and left index finger, to his hand, or to his arm and that plaintiff’s incapacity is not caused solely by injury to his thumb and finger, his hand, or his arm.

We next consider the question of sufficiency of the evidence to support the jury’s finding of total and permanent incapacity. It is well settled that the extent and duration of incapacity are at best estimates of the jury and that findings of total and permanent disability may be inferred from circumstantial evidence produced by lay witnesses even if contradicted by medical experts. Maryland Casualty Company v. Davis, 464 S.W.2d 433 (Tex.Civ.App.—Amarillo 1971, writ ref’d n.r.e.) ; Texas Employers’ Insurance Ass’n. v. Washington, 437 S.W.2d 340 (Tex.Civ.App.—Dallas 1969, writ ref’d n.r.e.).

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Bluebook (online)
516 S.W.2d 425, 1974 Tex. App. LEXIS 2745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartford-accident-indemnity-co-v-williams-texapp-1974.