Texas General Indemnity Co. v. Hope

461 S.W.2d 481, 1970 Tex. App. LEXIS 2151
CourtCourt of Appeals of Texas
DecidedNovember 13, 1970
DocketNo. 4414
StatusPublished
Cited by2 cases

This text of 461 S.W.2d 481 (Texas General Indemnity Co. v. Hope) 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. Hope, 461 S.W.2d 481, 1970 Tex. App. LEXIS 2151 (Tex. Ct. App. 1970).

Opinion

COLLINGS, Justice.

This is a Workman’s Compensation case. Joel M. Hope filed a notice of injury and claim for compensation before the Industrial Accident Board of the State of Texas on March 22, 1965, alleging that he had suffered an injury to his back while in the employ of Southern Ice and Cold Storage Company. The insurance carrier, Texas General Indemnity Company, appealed from the August 13, 1969 award of the Board to the District Court of Howard County. Upon a trial in the district court before a jury judgment was rendered on the verdict for Hope in the sum of $7,814.-04. Texas General Indemnity Company has appealed.

The record shows that appellee Hope on March 4, 1965 while in the course of his employment with Southern Ice and Cold Storage Company suffered an injury to his back and that the injury occurred when [482]*482appellee was attempting to load a large box of ice on a truck. On the next day appel-lee saw and was examined by Dr. J. E. Hogan of Big Spring who was the company doctor. Appellee Hope complained to the doctor of pain in the lower left side of his back extending down into his left leg. The evidence shows that as a result of his examination and x-rays taken under his direction, Dr. Hogan concluded that appel-lee was suffering from an acute spasm of the muscles of the lower spine, a temporary condition which usually clears up in from three days to three weeks time. At the doctor’s direction appellee Hope was admitted to the hospital on March 6, 1965 for complete rest, heat treatments, physiotherapy, and ultrasonic therapy. Such treatment is normal for a patient with a strain in the lumbosacral area. Appellee was discharged from the hospital on March 12, 1965, but returned on March 13, 15, and 17, 1965 for therapy and pain pills. Appellee’s last visit to the hospital was on March 17, 1965. Dr. Hogan stated that according to his records appellee’s pain had subsided on March 12th when he was discharged and that he was still improving on March 15th. After securing a release from Dr. Hogan appellee returned to work for Southern Ice on March 22, 1965. Ap-pellee did not see a doctor again about his back until July 11, 1969, when by order of the Industrial Accident Board he saw Dr. Bray, an orthopedic surgeon in Abilene. Appellee also saw Dr. Wiggins, a chiropractor, on November 17, 1969.

Appellant presents four points of error in which it is contended that the court erred (1) in rendering judgment against appellant because the jury’s finding that appellee Hope was totally disabled for a period of 200 weeks is against the great weight and preponderance of the evidence, (2) that the court erred in admitting into evidence defendant’s exhibits 1 and 2, purported x-rays of Hope because such x-rays were not taken by the doctor testifying thereto; that the x-rays were not shown to have been taken in accordance with recognized standards, were not shown to be x-rays of appellee Hope, that such x-rays were not in the continuous possession of the doctor, and that statutory procedure for introduction of x-rays was not followed, (3) that the court erred in its definition of “earning capacity” accompanying Special Issue No. 7 because such definition as given constitutes a comment on the weight of the evidence, and (4) that the court erred in submitting an improper, misleading, and - incomplete definition of the term “partial incapacity” accompanying Special Issue No. 4.

The jury found that appellee Hope, as a result of his March 4, 1965 injury, sustained some total disability or incapacity, and in answer to Special Issue No. 3 the duration of such total incapacity was found to be 200 weeks. We overrule appellant’s first point in which it is contended that such finding is against the great weight and preponderance of the evidence. There was evidence which supports the finding of the jury and evidence contrary to such finding, but the finding was not so against the great weight and preponderance of the evidence as to be manifestly wrong.

. Hope testified that at the time of the accident his back “just kind of popped”; that his back ached continually from the time of the accident, and was still aching at the time of the trial; that he took aspirin everyday to relieve the pain, but that his back still hurt him continually. Hope admitted that after the accident he began to work again in about seventeen or eighteen days, and that he has worked regularly for various employers since that time. He stated that at the time of the trial he was working forty to sixty hours per week and was receiving $2.20 per hour with time and one-half for overtime. He testified, however, that the reason he continued working in spite of the fact that his back was hurting, was economic necessity. He said that he was the sole support for his family and that he had to work to make them a living. As heretofore noted, Dr. Hogan diagnosed appellee’s injury as an acute spasm of the muscles of the lum[483]*483bar spine, an injury which clears up in a period of from three days to three weeks. Both Dr. Bray and the chiropractor Dr. Wiggins testified that appellee was not able to perform the usual and ordinary tasks of a workman by doing heavy lifting, and that he would not be able to pass a preemployment physical examination. The evidence in the case is, in our opinion, sufficient to support the finding that as a result of appellee’s accidental injury he sustained 200 weeks of total incapacity, and such finding is not against the great weight and preponderance of the evidence. Aetna Casualty and Surety Company v. Depoister, 393 S.W.2d 822, (CCA.1965, Ref. n. r. e.). Universal Underwriters Insurance Company v. Bounds, 401 S.W.2d 865, (CCA.1966, Ref. n. r. e.). Travelers Insurance Company v. Buffington, 400 S.W.2d 800, (CCA.1966, Ref. n. r. e.). Texas General Indemnity Company v. Ellis, 421 S.W.2d 467, (CCA.1967, no writ hist.).

In appellant’s second point it is contended that the court erred in admitting into evidence appellee’s exhibits one and two which were purportedly x-rays of Hope. Appellant asserts that the x-rays were not admissable because they were not taken by. the doctor testifying thereto, that the x-rays were not shown to be taken in accordance with recognized standards, that the x-rays were not shown to be of appel-lee Hope, that the x-rays were not in the continuous possession of the doctor, and that the statutory procedure for introducing x-rays was not followed. The record shows that appellee called as his medical witness Dr. Grady L. Wiggins an Abilene chiropractor. Dr. Wiggins brought with him for use during his testimony two x-rays which were purportedly x-rays of appellee Hope. Dr. Wiggins testified that the x-rays in question were made under his directions by Dr. Ollie Denton another Abilene chiropractor. He stated that Dr. Denton was a licensed chiropractor and that he was familiar with the technique of Dr. Denton in making x-rays; that such techniques were standard; that he had the same training at the same school that he, Dr. Wiggins, had; that he told Dr. Denton how he wanted the x-rays made and that such x-rays were made by Dr. Denton and accurately portrayed those portions of Mr. Hope’s body that he attempted to portray. Dr. Wiggins testified that the x-rays made by Dr. Denton were ordered by him and made at his direction and under his supervision.

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461 S.W.2d 481, 1970 Tex. App. LEXIS 2151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-general-indemnity-co-v-hope-texapp-1970.