Hawkins v. Aetna Casualty & Surety Co.

355 S.W.2d 537, 1962 Tex. App. LEXIS 2282
CourtCourt of Appeals of Texas
DecidedMarch 9, 1962
DocketNo. 16269
StatusPublished
Cited by1 cases

This text of 355 S.W.2d 537 (Hawkins v. Aetna Casualty & Surety Co.) 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
Hawkins v. Aetna Casualty & Surety Co., 355 S.W.2d 537, 1962 Tex. App. LEXIS 2282 (Tex. Ct. App. 1962).

Opinion

BOYD, Justice.

This is a workmen’s compensation case. James Hawkins, Jr., sued Aetna Casualty & Surety Company for compensation for total and permanent disability and recovered a verdict and judgment for seventy weeks of total temporary disability. Hawkins appealed.

The injury suffered by appellant resulted in a hernia. Appellee did not admit liability nor tender surgery. On appellant’s motion, the court entered an order in limine instructing appellee, its agents, counsel and witnesses “not to mention before the jury, nor in any way refer to any possible beneficial effects, if any, that surgery would have for the hernia condition * *

Basically, appellant’s points for reversal involve the propositions that there was no evidence to support the jury’s finding of temporary disability, and that the judgment should be reversed and rendered for compensation for total and permanent disability; if in fact there was some evidence to support that finding, it was insufficient, and the judgment should be reversed and' the cause remanded; that it was error to-overrule appellant’s motions for mistrial occasioned by what appellant characterizes-as appellee’s repeated and deliberate attempts to introduce prejudicial and inadmissible evidence in violation of the order in limine; and in refusing to grant a new trial1 because of alleged misconduct of the jury.

Appellant, age 47, was employed as a janitor at Bell Helicopter in August, 1956. From March, 1957 until October, 1959, he did not work at Bell on account' of a general layoff. In that interval he pursued his former line of work, which was cutting grass, trimming trees, and general yard work. On returning to Bell’s, among other things, his job required that he dispose of all waste in the plant. On the night of January 19, 1960, he was injured while lifting a 20-gallon can of rubber and paper, weighing about 100 pounds. He suffered sudden pain in the left groin. He continued his work until early in April, 1960. He first saw a physician on February 16. The physician was Dr. Sheinberg, Chief of Medical Services at Bell’s. It was on appellant’s second visit to Dr. Sheinberg on February 25 that the hernia was discovered. Appellant was then given lighter duties, which he performed until his vacation began early in April, 1960. He told his employer that during the vacation period he would get medical attention. He did not, but spent the time fishing. He returned for work on April 11, but was laid off on April 12, because “They couldn’t run any further risk of me working.”

Dr. Sheinberg testified that in his opinion appellant’s hernia was not self-repairing through bodily processes; the course of this kind of hernia is to get progressively worse; some physicians inject medicines into hernias; he would not treat a hernia by that method, and in most cases it is not a desirable treatment; appellant is not qualified to pass a pre-employment physical at [539]*539Hell’s if the witness examined him; he knew of no employer in the area who would employ appellant; appellant is totally disabled, and such condition will be permanent ■“unless something is done.”

Appellant’s medical witness, Dr. Gardener, who first saw appellant the day before the trial, testified that in his opinion appellant’s disability is total and permanent; he said one method of treatment for hernia was by use of a truss; another, by the injection of a sclerosing agent; if the injection method should be used appellant’s disability “might not be total and/or permanent ; * * * Q. And if that procedure were carried out * * * then this man would not be totally disabled or permanently disabled would he? A. No, sir.” He thought the use of a truss was dangerous, but he had heard of people who suffered from hernia who carried on normal, active lives while using trusses. He said the injection treatment is not now in general use, and is not usually reliable.

The extent and duration of disability caused by an injury are rarely susceptible of accurate measurement, and ordinarily involve questions of fact. Texas Employers’ Ins. Ass’n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967; Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972; Hicks v. Georgia Casualty Co., 5 Cir., 63 F.2d 157; Employers Reinsurance Corp. v. Jones, Tex.Civ.App., 195 S.W.2d 810; Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772.

In Texas Employers’ Ins. Ass’n v. Fletcher, Tex.Civ.App., 214 S.W.2d 873, it was said:

“Our courts have held that in cases of this nature the duration of the disability is at best an estimate which must be determined by a jury from all the pertinent facts before it. * * * ”

We can not say that there was no •evidence to support the finding that appellant’s disability was temporary, or that such finding is so against the great weight and preponderance of the evidence as to be clearly wrong.

Appellant’s contention that appellee' deliberately and repeatedly attempted to introduce prejudicial and inadmissible evidence in violation of the order in limine is based upon the following occurrences: Appellant testified that he was sent home from work because he had hernia. Appellee was permitted to show that in his deposition appellant said that he was sent home from work because he needed an operation. Ap-pellee’s witness Cox testified that appellant was sent home to get his hernia “taken care of.” Appellee’s medical witness was asked the following question by appellant, and gave the following answer: “Q. And this condition of the hernia is a permanent condition, is it not? A. Unless something is done.” Appellee asked appellant’s medical witness the following question: “Now Dr. Gardener, you don’t mean to tell this jury that with proper medical treatment this man is totally and permanently disabled, do you?” An objection to the question was sustained. Then appellee asked the witness : “Q. Dr. Gardener, there are several methods of treating hernia, are there not?” To which the witness answered: “Yes, sir.” The court sustained an objection to the question, but did not instruct the jury to disregard the answer. When each of these incidents transpired, appellant moved for a mistrial, and each motion was overruled.

While the question presented is not free from difficulty, we do not believe that the matters complained of amounted to such a denial of the rights of appellant as would be reasonably calculated to cause or did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. There was no testimony that surgery would benefit appellant; and since it was shown that there are methods of treating hernia other than by surgery, it does not necessarily follow that when such expressions as “taken care of” or “treatment” [540]*540were used, the witnesses or attorneys meant “surgery.”

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355 S.W.2d 537, 1962 Tex. App. LEXIS 2282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkins-v-aetna-casualty-surety-co-texapp-1962.