Travelers Insurance Company v. Linder

Court of Appeals of Texas

Travelers Insurance Company v. Linder

368 S.W.2d 797, 1963 Tex. App. LEXIS 2363

CourtCourt of Appeals of Texas

DecidedMarch 13, 1963

Docket5577

StatusPublished

Cited by11 cases

This text of 368 S.W.2d 797 (Travelers Insurance Company v. Linder) 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

Travelers Insurance Company v. Linder, 368 S.W.2d 797, 1963 Tex. App. LEXIS 2363 (Tex. Ct. App. 1963).

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Opinions

FRASER, Justice.

This is an appeal from a judgment awarding maximum benefits under the Workmen’s Compensation Law of this State for total and permanent incapacity from injuries received while working as a .roughneck on February 23, 1960.

Issue No. 3 inquired whether or not ap-pellee’s total incapacity was permanent. Appellant presented four points of error, all directed at this issue. Points 2 and 4 alleged that there was no evidence to authorize either the submission of the issue or to support the jury’s affirmative answer thereto. Appellant’s Points 1 and 3 allege that there was insufficient evidence to- justify the court’s submission of said issue, or to support the jury’s affirmative answer thereto.

It appears from the record that there were only two witnesses who testified before the trial court. These two witnesses were appellee and his wife. The statement of facts does not show any other testimony from anyone. In other words, we have here a record with no medical testimony. We have carefully reviewed the evidence and record of this case and have-reached the conclusion that appellant’s Points 1 and 3 must be sustained. Taking all of the evidence or testimony produced from plaintiff-appellee and his wife, and giving such testimony its most favorable and elastic construction, it does, in our opinion, fall short of warranting the submission of Issue No. 3 and of sustaining the jury’s answer thereto. Plaintiff and his wife testified as to the pain he had suffered; the doctors with whom he had consulted; the hospitals in which he had been confined; the treatments he had taken and was still taking; the pain he had suffered and was still suffering; the difficulty in working that he was encountering and the necessity of continued medication for pain; but nowhere does he, nor does his wife, say that he or she believes this condition to be permanent. Of course if they did make such a statement, such would come close to speculation or conclusion because of its non-medical or non-expert source. As we have just noted, there is a total absence in the record of any medical testimony, x-rays, hospital records, etc.; nor is there anything in the record to negative the possibility that surgery might either cure or alleviate the pain, discomfort or disability. For these reasons we must therefore hold that appellant’s Points 1 and 3 are well taken, and that there was insufficient evidence to warrant the submission of Issue No. 3 and to support the affirmative answer thereto by the jury, which of course was in plaintiff’s favor. Indemnity Insur. Co. of North America v. Cady, 356 S.W.2d 323 (Tex.Civ.App., 1962, no writ noted).

[799]*799Appellant also urges, in Points 2 and 4, that there is no evidence to support the submission of and the answer to Issue No. 3, but we are not inclined to make such holding on the basis of the record before us, and therefore overrule these two points.

We do not cite other authorities, as the matters discussed here have been so long and clearly decided that they are elementary, and our finding is, of course, one of fact — to-wit, the insufficiency of the evidence.

Appellant’s Points 1 and 3 are therefore sustained, and the decision of the trial court is reversed and the cause remanded for new trial.

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FRASER, Justice.

This is an appeal from a judgment awarding maximum benefits under the Workmen’s Compensation Law of this State for total and permanent incapacity from injuries received while working as a .roughneck on February 23, 1960.

Issue No. 3 inquired whether or not ap-pellee’s total incapacity was permanent. Appellant presented four points of error, all directed at this issue. Points 2 and 4 alleged that there was no evidence to authorize either the submission of the issue or to support the jury’s affirmative answer thereto. Appellant’s Points 1 and 3 allege that there was insufficient evidence to- justify the court’s submission of said issue, or to support the jury’s affirmative answer thereto.

It appears from the record that there were only two witnesses who testified before the trial court. These two witnesses were appellee and his wife. The statement of facts does not show any other testimony from anyone. In other words, we have here a record with no medical testimony. We have carefully reviewed the evidence and record of this case and have-reached the conclusion that appellant’s Points 1 and 3 must be sustained. Taking all of the evidence or testimony produced from plaintiff-appellee and his wife, and giving such testimony its most favorable and elastic construction, it does, in our opinion, fall short of warranting the submission of Issue No. 3 and of sustaining the jury’s answer thereto. Plaintiff and his wife testified as to the pain he had suffered; the doctors with whom he had consulted; the hospitals in which he had been confined; the treatments he had taken and was still taking; the pain he had suffered and was still suffering; the difficulty in working that he was encountering and the necessity of continued medication for pain; but nowhere does he, nor does his wife, say that he or she believes this condition to be permanent. Of course if they did make such a statement, such would come close to speculation or conclusion because of its non-medical or non-expert source. As we have just noted, there is a total absence in the record of any medical testimony, x-rays, hospital records, etc.; nor is there anything in the record to negative the possibility that surgery might either cure or alleviate the pain, discomfort or disability. For these reasons we must therefore hold that appellant’s Points 1 and 3 are well taken, and that there was insufficient evidence to warrant the submission of Issue No. 3 and to support the affirmative answer thereto by the jury, which of course was in plaintiff’s favor. Indemnity Insur. Co. of North America v. Cady, 356 S.W.2d 323 (Tex.Civ.App., 1962, no writ noted).

[799]*799Appellant also urges, in Points 2 and 4, that there is no evidence to support the submission of and the answer to Issue No. 3, but we are not inclined to make such holding on the basis of the record before us, and therefore overrule these two points.

We do not cite other authorities, as the matters discussed here have been so long and clearly decided that they are elementary, and our finding is, of course, one of fact — to-wit, the insufficiency of the evidence.

Appellant’s Points 1 and 3 are therefore sustained, and the decision of the trial court is reversed and the cause remanded for new trial.

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368 S.W.2d 797, 1963 Tex. App. LEXIS 2363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-insurance-company-v-linder-texapp-1963.

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