Opinion
No. 3731.
August 9, 1929. Rehearing Denied October 10, 1929.
Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.
Action by J. W. Pogue, against the Cotton Oil Company, employer, and the United States Fidelity Guaranty Company, insurer, to recover compensation for injuries. From a Judgment awarding compensation, insurer appeals. Affirmed.
The appellee, in the employ of the Cotton Oil Company of Texarkana, sustained a bodily injury while he and another employee were loading sacks of cotton seed hulls in a railway box car, stationed at the time by the platform of the building of the oil company. From an award in his favor by the Industrial Accident Board, the appellee timely appealed to the district court. In the district court the appellee pleaded his injury, namely: "That while engaged in this work one stack of sacks accidentally fell on plaintiff, crushing him against the floor, breaking his left hip in the joint, breaking the socket of the joint, and that plaintiff was immediately taken to the Texarkana Sanitarium, where he was attended by a physician, and where he remained for thirty-three days, after which time the plaintiff was taken home, in March, 1928, and was furnished a pair of crutches, but that plaintiff is unable to work and is totally incapacitated, and plaintiff alleges that he is permantly incapacitated." The petition sought to have compensation awarded to plaintiff, as being totally incapacitated to labor, for 401 weeks from date of injury on October 20, 1927, with payment of such compensation, less credits allowed, to be made, instead of weekly, in a lump sum. The appellant answered by a general denial and a plea of credits.
The hulls that were being loaded were sacked in 100-pound sacks, and were stacked 11 sacks high in the main building of the cotton oil company. The stacks were pulled down on the floor of the building, and then each sack was picked up and placed on a truck and hauled to the box car, stationed by the side of the platform of the building. One of the stacks unexpectedly toppled over, knocking the appellee down on the floor of the building, and, the sacks falling full force on him, injured him. The appellee is 70 years old, uneducated, and has continuously been employed in common labor.
His injury was described by his physician as follows: "I examined the plaintiff and assisted in making an X-ray picture of him. Upon my examination I found an injury to the left hip bone. The head of the femur bone was driven in the socket impact. The neck of the femur bone, or trochanter, was driven one-fourth of an inch into the femur (pelvic) bone. Something struck the hip. He has practically no motion in that joint at all. I did not examine him until October, 1928. At that time I found a shortening and stiffening of the left hip joint. There was great pain and practically no motion. A man seventy years old with an injury such as this man had received is, in my judgment, totally incapacitated to do any kind of work such as lifting, stooping, picking up or anything like that. He will not improve. The result of this condition, in my opinion, will be that the muscles and nerves will continue to be affected and there will be more atrophy. You seldom see this kind of a break in the neck of the femur, and where the head is driven in like that, but what it results in a stiff joint for the rest of the life. * * * The femur is the big bone in the leg, from the knee to the body. The entire neck was broken. The neck was driven into the (hip) bone, and the (hip) bone, I think was split. The muscles of the left leg are perishing away."
Appellee himself describes his injury thus: "I do not know how many sacks fell on me. They struck me on this left hip. I stayed at the hospital thirty-three or thirty-four days. When they carried me home I stayed in bed for the next three months. I couldn't get up. They had a piece of steel down my leg and all over my left side. * * * It was six, months after I got home before I could get out of the house. * * * I have never been able to move that leg without misery, and I have never been able to walk without misery. I have to put my weight on my crutch. I can not put my weight on that leg. It is painful for me to walk with or without my crutches. I can not sleep on my left side at night, and have to sleep on my back. If I sleep on my right side it pains me. I am not able to work now. I would be at work if I were able. My left leg is smaller and shorter than my right. This condition did not exist before the injury."
The medical evidence in behalf of the appellant was, in substance, that the injury was confined to a fracture only of the neck of the femur bone, which has now united and become permanently healed and normal, except that the left leg had been left about an inch shorter than the right; that the disability to labor was not over 15 or 20 per cent.
The case was submitted to the jury on special issues, viz.:
"No. 1. Did the plaintiff receive an injury on October 20, 1927, while in the usual course of his employment with the Texarkana Cotton Oil Company?" Answer by jury: "Yes."
"No. 2. Was the plaintiff totally incapacitated for work as a result of such Injury ?" Answer by jury: "Yes."
(Here follows definition of "totally incapacitated for work.")
"No. 3. State whether or not such total incapacity for work is permanent." Answer by jury: "Yes."
"No. 4. Do you find from the evidence that a manifest hardship or injustice would result to plaintiff if the defendant should fail to redeem its liability, if any, by payment of a lump sum instead of weekly payments." Answer by jury: "Yes."
In keeping with the verdict, the court entered judgment for plaintiff awarding him compensation, credited by payments already made, for 401 weeks from date of injury, payable in a lump sum. The amount of weekly compensation was an agreed fact.
King, Mahaffey Wheeler, of Texarkana, for appellant.
Elmer L. Lincoln and Wm. V. Brown, both of Texarkana, for appellee.
The major question of the case is that of whether under the pleadings and proof the appellee was entitled to be awarded the compensation of 60 per cent. of his weekly wages, payable weekly during the period of 200 weeks from the date of the injury, as of partial incapacity to work from the permanent loss of the use of a specific member of the body, or during 401 weeks, and payable in a lump sum, as of total incapacity to labor from permanent injury in its nature affecting the body and not alone a specific member thereof. The appellant insists that, under the appellee's pleading, and under all the proof, this was a suit based solely on the permanent loss of the use of a leg, and therefore section 12 of article 8306 of the Workmen's Compensation Law (Rev.St. 1925, arts. 8306-8309) was applicable, absolutely fixing the compensation and the method of payment. The appellee insists the case was made otherwise, and that section 10 of the article mentioned has application to the injury, and that section 15 authorizes payment in a lump sum. The allegations of the appellee's petition may properly be interpreted as pleading the injury to be, in effect, that the left "hip joint" and "the socket" on the hip bone were "broken," proximately causing him to be "totally and permanently incapacitated" generally for work. There were no special exceptions urged to the petition. Such allegations do not necessarily confine the appellee to compensation for the specific injury of loss of the left "leg," or, the loss of the use thereof, as enumerated in section 12. The allegations, as well as the proof in behalf of appellee, are broad enough to include all the conditions and results that have set up in consequence of a permanent injury to the "hip joint" and "the socket" on the hip bone. The testimony of the physician attending the appellee is in meaning and extent that the weight and force of the sacks of cotton seed hulls falling against the body of appellee drove the "femur head" "into the socket" of the hip bone, causing an impacted fracture, and that "the neck of the femur hone" was driven "one-fourth of an inch" into the pelvic bone or hip joint. The "neck," he says, "was driven down into the bone," and "I think the bone was split" and the "entire neck was broken." And, as further shown by appellee, such character of injury was permanent, producing great pain, loss of sleep, and general incapacity. In the framework of the body, according to anatomy, "the hip" is counted as a skeletal part, as distinguished from foot and leg. The side of the pelvis and the upper part of the femur, with the flesh covering them, form the hip. The top of the femur, or thigh bone, fits into its "socket" on the hip bone, and by connective tissue is there held in flexibility and with a fair degree of firmness. This connective tissue or joint cartilages serve the office of protection against the force of weight and the grinding of the bones. An "impacted injury to the socket" and the "head of the femur" in which the fragments are driven firmly together, so that they will not move on one another, may well be regarded, in special circumstances, as an injury not alone to the "leg" or femur, but also to the body. In such circumstances the connective tissue or joint cartilages are degenerated and the "head of the femur" grinds against its "socket" on the hip bone, causing pain to the body that otherwise would not be there. The bone meets bone directly, and the impacted joints grind and produce pain. Such fractures, as proven, slowly unite, if ever, at appellee's age. The injury being to the "hip joint" and the "socket" on the hip bone and in addition thereto to the "femur," producing pain, the appellee's contention should be sustained. The case is different from the cases of Ins. Co. v. Washington (Tex.Civ.App.) 5 S.W.2d 783; Petroleum Casualty Co. v. Seale (Tex.Com.App.) 13 S.W.2d 364. The case has similarity to the cases of Millers' Indemnity Underwriters v. Cahal (Tex.Civ.App.) 257 S.W. 957; Lumberman's Reciprocal Ass'n v. Anders (Tex.Civ.App.) 292 S.W. 265; Security Union Casualty Co. v. Frederick (Tex.Civ.App.) 295 S.W. 301.
Appellant insists that the appellee admitted that the injury was confined to the femur only. There is no such admission in the statement of facts, and we are not inclined to consider the bill of exception, which merely recites appellee's counsel's construction of the evidence made in the course of argument.
The appellant requested and the court refused to give the following instruction: "If you find from the evidence that the plaintiff as a result of the injuries received by him was totally incapacitated to labor then was such disability temporary?" The finding asked was directly and necessarily involved in the question submitted by the court to the jury, viz.: "No. 3. State whether or not such total incapacity for work is permanent." We think there was no error in refusing the other special instructions complained of, and each of the assignments of error in that respect is overruled.
The judgment is affirmed.