
    TEXAS EMPLOYERS’ INS. ASS’N v. WHITE.
    No. 3392.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 22, 1936.
    Rehearing Denied Nov. 12, 1936.
    
      Scarborough & Ely, of Abilene, for appellant.
    J. B. Cotten, and Fred H. Woodard, both of Crane, and Fred C. Knollenberg, of El Paso, for appellee.
   PELPHREY, Chief Justice.

Appellee was injured on or about October 22, 1934, while working as a roustabout for H. O. Wooten, on an oil lease in Glass-cock county, Tex.

Within six months thereafter he filed his claim for compensation with the Industrial Accident Board. From an -award made by the Board appellee gave notice of appeal and filed this suit in the district court of Glasscock county claiming to be permanently and totally disabled and seeking recovery of compensation for a period of 401 weeks'at $13.29 per week which it is agreed is the correct wage scale.

In the alternative he prayed for compensation for such period of time and extent of disability as he might show himself entitled.

Appellant answered by general demurrer and general denial.

The case was tried upon special issues, and judgment rendered in favor of appel-lee for $4,676.35. This appeal followed.

Opinion.

Appellant complains of the judgment because of misconduct of the jury; because of conflict in the jury’s finding; because of the exclusion of evidence for appellant; because of the admission of evidence over appellant’s objection; because of the court’s refusal to instruct the jury to disregard certain evidence; and because the court permitted a witness to make a speech to the jury which was not responsive to the question asked.

The record shows that the attorneys for appellant told the jury while the panel was being examined, and again in the arguments to the jury, that appellant agreed that appellee had been hurt and that they owed him, but could not agree on the amount. This being true, then appellant was not harmed by the fact that the jury decided whether they should find for appellee or against him before they answered the several issues.

It further appears that the evidence on the motion for a new trial was conflicting as to whether or not the jury framed its answers so as to carry the decision that appellee should recover into effect. The decision of this issue was within the province of the trial court, and his determination thereof will not be disturbed by us unless palpably wrong. Texas Employers’ Ins. Ass’n v. Chocolate Shop (Tex.Com.App.) 44 S.W.(2d) 989.

The court did not err in refusing the new trial on the ground of the jury’s misconduct and the assignments raising that question are overruled.

Special issue No. 4 read: “Do you find from a preponderance of the evidence that such injury, if any .found by you, sustained on or about October 22, 1934, if any, naturally resulted in total incapacity of said R. H. White for any length of time?” To this issue the jury answered, “Yes.”

Special issue No. 8 read: “Do you find from a preponderance of the evidence that such injury, if any, sustained on or about October 22, 1934, did not result in partial incapacity of R. H. White? Answer, ‘The injury of October 22, 1934, did not result in partial incapacity,’ or ‘The injury of October 22, 1934, did result in partial incapacity of R. H. White,’ as you find the facts to be.” To this issue the jury answered, “The injury of October 22, 1934, did result in partial incapacity of R. H. White.”

Appellant now contends that there is such a conflict between the findings on the above issues as to preclude the rendering of a judgment.

A further examination shows, however, that the jury in response to special issue No. 9 found that the partial incapacity found by them in answer to special issue No. 8 was 100 per cent., and in answer to special issue No. 10 that such partial incapacity was permanent.

It is the duty of a court .construing findings to construe them as a whole, Elder, Dempster & Co., Ltd., v. Weld-Neville Cotton Co. (Tex.Com.App.) 231 S.W. 102; First National Bank v. Rush (Tex.Com.App.) 246 S.W. 349, and that they should be so construed as to support the trial court’s judgment, Scruggs v. Crockett Automobile Co. (Tex.Civ.App.) 41 S.W.(2d) 509.

We think when we apply the above rulings to the findings before us that no such conflict exists as would have warranted the trial court in refusing to render judgment thereon. The fact that ap-pellee’s brother had been injured and had claimed compensation from another insurance company was not admissible to show an interest on the part of the witness, and the court properly excluded such evidence.

The evidence of hemorrhage was clearly admissible, and it was not necessary for appellee to show that it was caused specifically by his injury to render it so.

The evidence introduced by appel-lee as to being jerked down across the sill is not a variance from the allegation that he was injured while “lifting on, straining at and pulling upon Superior Gas Engine.”

Appellee’s version of the accident is: “You know what a Superior engine is. The fly wheel was higher than my head standing on the floor and the fly wheel was about that high (indicating) from my head to the floor. It had very little spark, if any. We had taken the magneto off and after we decided we couldn’t start it with the old magneto, he (the farm boss) said we would put the new one on that he had. I held it while he fastened it on. Then he said, ‘all right, boys, let’s give .her hell.’ Those were his words and when I reached down to get the fly wheel I was standing straddling the sill. This sill was, I would say, about a sixteen by sixteen sill and some three or four inches off the ground. I was standing straddling the sill and reached down and got the spoke and he said ‘let’s give her hell.’ Simmons was at the front and one of the other boys and him were pulling up and it backfired out; it pulled me down like that (indicating). I hit the ground and straddled the sill.”

The court was justified in concluding that appellant’s counsel was not requesting Dr. Fisher’s memorandum for the purpose of cross-examination but for other purposes, and, therefore, committed no error in refusing the request.

If the witness, Dr. Black, exceeded the rights of a witness, such conduct was certainly invited by appellant’s counsel.

Finding no reversible error, we have concluded that the judgment should be affirmed, and it is so ordered.  