Texas General Indemnity Co. v. Hancock

422 S.W.2d 565, 1967 Tex. App. LEXIS 2816
CourtCourt of Appeals of Texas
DecidedDecember 8, 1967
DocketNo. 16862
StatusPublished
Cited by2 cases

This text of 422 S.W.2d 565 (Texas General Indemnity Co. v. Hancock) 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
Texas General Indemnity Co. v. Hancock, 422 S.W.2d 565, 1967 Tex. App. LEXIS 2816 (Tex. Ct. App. 1967).

Opinion

OPINION

LANGDON, Justice.

This is a workmen’s compensation case. Judgment was rendered for plaintiff upon a. [566]*566jury verdict of total and permanent incapacity and for the sum of $4,456.82, representing medical bills. A judgment was also rendered in favor of Harris Hospital for $1,291.20. Harris Hospital does not join in this appeal.

The appellant contends the court erred in overruling its motion for judgment notwithstanding the verdict in that there was no evidence or insufficient evidence to support the jury’s finding of permanent disability. More specifically the complaint is that there was no expert testimony in support thereof. Further complaint is made of the court’s submission of the question of medicine, hospital and doctor’s bills in a single issue rather than separate issues as to each item of such expenses, and in failing to submit issues as to whether or not plaintiffs requested defendant to furnish the various items of medical and hospital services in question or gave notice to defendant of any such request.

We affirm.

On November 18, 1964, the appellee Mrs. Josephine Hancock fell to the floor at Harris Hospital, in Fort Worth, where she was employed. She testified that someone helped her up. At that time she did not have any idea she had received any lasting injury. She worked until about 3:00 o’clock that afternoon, the end of her normal working day, and on the two following days, Thursday and Friday. Saturday and Sunday were not working days for her. She was scheduled to start a week vacation on the following Monday, November 23. She entered Harris Hospital as a patient on November 24, and remained there until December 19, during which period she was treated for pneumonia. Harris Hospital bill on this occasion was $1,164.00. Doctor bills were $190.00.

She eventually went back to work on January 11, 1965, and worked for about two weeks. She re-entered Harris Hospital as a patient on March 28, 1965, and remained there until April 22, during which time she underwent an operation relating to the scalenus muscle. She was discharged from the hospital on this occasion on April 22, 1965. Harris Hospital bill for this stay amounted to $864.45.

On February 22, 1966, Mrs. Hancock again re-entered Harris Hospital as a patient, and on April 4 underwent surgery involving a spinal fusion. The Harris Hospital bill on this occasion amounted to $1,-690.55. The bill of Fort Worth Bone and Joint Clinic covering services of Dr. McDonald from January 29, 1965 to date of trial was $1,013.00. There were other items of medical expenses contained in the pleadings including a trial amendment all of which totalled $7,138.54.

Based upon our examination and study of the record as a whole we are of the opinion that there is ample evidence in support of the jury’s finding of permanent disability. The record contains expert testimony as well as non-expert testimony in support of the verdict and the judgment based thereon. Under this record we have no authority to disturb the judgment. Suffice it to say that there was evidence which would have supported a verdict either way and thus presented an open question for the trier of the facts. It was resolved against the defendant. Trinity Universal Insurance Company v. Farley, Tex.Civ.App., 408 S.W.2d 776 (Tyler Civ.App., 1966, no writ hist.); Associated Employers Lloyds v. Self, Tex.Civ.App., 192 S.W.2d 902 (Dallas Civ.App., 1946, ref., n. r. e.); Standard Accident Insurance Company v. Mize, Tex.Civ.App., 378 S.W.2d 686 (Amarillo Civ.App., 1964, no writ hist.).

The record reflects that there was notice of injury to the subscriber; a denial of liability by the insurer and failure of the latter to provide medical service for Mrs. Hancock. The jury found such failure on the part of the defendant to provide medical service and that plaintiff necessarily incurred charges for medical expenses in treatment of her injuries. Great American Indemnity Co. v. Beaupre, Tex.Civ.App., 191 S.W.2d 883 (Dallas Civ.App., 1945, writ [567]*567ref. n. r. e.); Trinity Universal Insurance Company v. Farley, Tex.Civ.App., 408 S.W.2d 776 (Tyler Civ.App., 1966, no writ hist.); Travelers Insurance Company v. Hernandez (5th Cir. 1960), 276 F.2d 267; United States Fidelity and Guaranty Co. v. Camp, Tex.Civ.App., 367 S.W.2d 952 (Houston Civ.App., 1963, writ ref. n. r. e.); Saint Paul Mercury Indemnity Company v. Tarver, Tex.Civ.App., 272 S.W.2d 795 (Eastland Civ.App., 1954, writ ref. n. r. e.).

Article 8306, Sec. 7, Texas Revised Civil Statutes, provides, “If the association fails to so furnish reasonable medical aid, hospital services, nursing, chiropractic services and medicines as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said medical aid, nursing, hospital services, chiropractic services, and medicines at the cost and expense of the association.”

Article 8309, Sec. 1, Texas Revised Civil Statutes, defines “subscriber” as follows: “ ‘Subscriber’ shall mean any employer who has become a member of the association by paying the required premium; * * *.”

Harris Hospital, Mrs. Hancock’s employer, comes within the definition of a subscriber and it had notice of the injury on the date that it occurred.

Claudia Crooks was Mrs. Hancock’s immediate supervisor at the Harris Hospital; the plaintiff signed an unusual occurrence report in Mrs. Crooks’ presence on the date of the injury. Louis M. Dennis, Director of Personnel at Harris Hospital, a representative or agent for the defendant herein, was also notified in behalf of the defendant.

Under Sec. 7 of Art. 8306, V.A.C.S., supra, the carrier has the responsibility of furnishing all reasonable and necessary medical care for any compensable injury after proper notice thereof has been given. The fact that no express demand was made upon the carrier to furnish such care would not preclude recovery under the facts of this case in which the jury found that the defendant failed to furnish reasonable and necessary medical aid after November 18, 1964, and the defendant has denied liability at all times.

Further with reference to notice, Rule 93, Texas Rules of Civil Procedure, provides in part as follows: “In the trial of any case appealed to the court from the Industrial Accident Board the following, if pleaded, shall be presumed to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:

“(1) Notice of injury. * * *”

There was no denial of notice by verified pleadings apparent in the record.

The appellant raised two general objections to the claim for reimbursement of medical expenses.

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422 S.W.2d 565, 1967 Tex. App. LEXIS 2816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-general-indemnity-co-v-hancock-texapp-1967.