United States Fidelity & Guaranty Co. v. Jones

364 S.W.2d 774, 1963 Tex. App. LEXIS 1595
CourtCourt of Appeals of Texas
DecidedJanuary 25, 1963
DocketNo. 3754
StatusPublished
Cited by3 cases

This text of 364 S.W.2d 774 (United States Fidelity & Guaranty Co. v. Jones) 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
United States Fidelity & Guaranty Co. v. Jones, 364 S.W.2d 774, 1963 Tex. App. LEXIS 1595 (Tex. Ct. App. 1963).

Opinion

COLLINGS, Justice.

This is a workmen’s compensation case brought by Marjorie Mary Jones and her husband against United States Fidelity & Guaranty Company. Plaintiffs originally sought to recover for the loss of use of a leg by Mrs. Jones, alleged to have been suffered by reason of an accidental injury sustained in the course of her employment with Thorp’s, Inc., of Abilene. In an amended petition plaintiffs alleged injury to Mrs. Jones* left foot and left leg; that blood clots developed in the leg bringing about thrombo phlebitis, thereby causing damage to the left hip and lower part of tlie back, and causing her to be totally and permanently disabled.

Defendant answered by denying that Mrs. Jones sustained any injury while engaged in the course of her said employ[776]*776ment, and further alleged that any incapacity she may have suffered was due solely to pre-existing disease or came into existence after and was wholly unconnected with her alleged injury.

The case was tried before a jury which found that Mrs. Jones sustained a personal injury on or about December 10, 1960; that such injury was the result of an accident, and sustained in the course of her employment with Thorp’s, Inc. of Abilene; that as a natural result of such injury Mrs. Jones sustained total incapacity for a period of 200 weeks. Judgment was entered for plaintiffs awarding compensation benefits for such incapacity in 'the sum of $6,255.12. United States Fidelity and Guaranty Company has appealed.

In appellant’s first and second points it is urged that the court erred in holding there was any evidence and, in the alternative, that there was sufficient evidence to show that Mrs. Jones sustained a personal injury in the course of her employment for which she was entitled to recover under the workmen’s compensation law.

The evidence shows that on December 10, 1960, Mrs. Jones was an employee of Thorp’s, Inc. in Abilene, Texas; that at that time she was fitting shoes for a customer and was sitting on a fitting stool furnished by her employer. The stool was 12 to 14 inches in height and had no arm rests so a person rising from it would be required to raise the entire weight of his body by the use of the feet and legs. Mrs. Jones was sitting sideways on the stool in a position in which her legs were tucked behind her. She started to get up from the stool to go to the back of the store for some shoes and the evidence indicates that when she was in the process of getting up she heard "something snap” and felt a sharp pain in her left heel. The shoe on that foot came off. Mrs. Jones testified that she hurt her heel when she got off the stool. She said that she thought at first that she had sprained her ankle. There was evidence to the effect that she cried out, complaining that her heel was hurt. The heel began to swell immediately and her husband came to the store and took her home. She later went to see Dr. Haynes and thereafter also saw Dr. Capps at the Dyess Air Force Base Hospital. Mrs. Jones gave a history to both of these doctors of getting up off a stool and hearing something snap and feeling a sharp pain in her heel at the time. Dr. Haynes testified that in his opinion Mrs. Jones had suffered either traumatic bursitis or a tear of the achilles tendon in her heel. Dr. Capps testified that it was his opinion that she had suffered a partial tearing away of the heel cord tendon.

Appellant contends in connection with its first two points that there were no facts in evidence and in the alternative that the evidence was insufficient to show that any accident occurred which caused damage or harm to Mrs. Jones’ heel and that the evidence also fails to show that the injury to Mrs. Jones’ heel, if any, originated in or had anything to do with her employer’s business, or was such that she was entitled to recover for under the Workmen’s Compensation Act.

Appellant’s first and second points are not well taken. The evidence shows that Mrs. Jones did sustain an injury to her heel while working for her employer. In Traders & General Insurance Company v. Weatherford, Tex.Civ.App., 124 S.W.2d 423, it was held that an injury could be the result of an accident, or that the injury, itself, might be the accident, and in the one case as well as the other be compensa-ble if disability resulted. In 1 C.J.S. Accident page 432, it is stated that the term accident “is often used to denote any unintended and unexpected loss or hurt apart from its cause, and if the cause is not known the loss or hurt itself would be called an accident.” In our opinion there is some evidence to support the findings that Mrs. Jones sustained a personal injury as alleged, and that such injury was the result of an accident. We also hold that such evidence is sufficient to support the verdict. The [777]*777evidence as above briefly stated also shows that Mrs. Jones’ accidental injury was sustained in the course of her employment with Thorp’s, Inc., and was such that she was entitled to recover therefor under the Workmen’s Compensation Act.

In appellant’s third, fourth and fifth points it is contended that there were no pleadings, evidence or findings to the effect that the injury claimed to have been sustained to Mrs. Jones’ left foot extended to or affected other parts of her body so as to support the judgment for a general injury, and that the court erred in refusing to so hold. Appellant asserts that the only claimed injury is to the foot, which is a specific injury; that such an injury may become a general injury, but to establish a general injury in such cases the claimant must plead, prove and secure findings that the specific injury extended to and affected other parts of the body. Appellant contends that there were no pleadings to support a claim of general injury; that the evidence showed conclusively that the only injury, if any, sustained by Mrs. Jones was to her left foot and that other portions of her body were not affected except by such injury and her right to recovery was therefore limited to the loss of a foot for which no recovery was sought as a specific injury under plaintiffs’ pleadings, and that the court therefore erred in entering judgment for plaintiffs for a general injury. Appellant particularly contends that there were no facts in evidence from which it could be presumed that the accident, if any, caused phlebitis to set in as a natural result thereof, and that there were no facts from which it could be inferred or presumed that because of such phlebitis, if any, that blood clots naturally developed so as to cause thrombo phlebitis and ailments to other parts of her body as alleged and claimed by plaintiffs.

Appellant’s contention that there were no pleadings that the injury claimed to have been sustained to Mrs. Jones’ left foot extended to or affected other parts of her body is not well taken. Appellees alleged that Mrs. Jones’ left foot was injured; that because thereof blood clots developed in the leg bringing about thrombo phlebitis, and that as a result thereof there was damage to the left hip and lower part of the back causing her to be totally and permanently disabled.

We also overrule appellant’s contention that there was no evidence to the effect that the injury sustained to Mrs. Jones’ left foot extended to or affected other parts of her body. Both of the medical witnesses herein testified that Mrs. Jones suffered from thrombo phlebitis. The evidence indicates that this condition came into being after the injury to Mrs.

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Bluebook (online)
364 S.W.2d 774, 1963 Tex. App. LEXIS 1595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-fidelity-guaranty-co-v-jones-texapp-1963.