Citations
- 429 S.W.2d 516
Full opinion text
FANNING, Justice.
A workmen’s compensation case. Appellant Sanders sued appellee insurance company for compensation for permanent total incapacity resulting from an injury allegedly sustained on or about September 8, 1965, in the course of his employment by Nu-tone, Inc., Woodcarv Division. Trial to a jury resulted in a verdict in which the jury answered “We do Not” to an issue inquiring if they found from a preponderance of the evidence that Joe M. Sanders sustained an injury on or about the 8th day of September, 1965, and “due to solely to other causes” to an issue inquiring if they found from a preponderance of the evidence that the incapacity, if any, of Joe M. Sanders is not now and will not in the future be solely caused by congenital defects, scoliosis, or arthritis, or any combination thereof, existing independent of and having no connection with the alleged injury made the basis of this suit. Judgment was rendered that plaintiff-appellant Sanders take nothing and he has appealed.
Appellant presents 8 points on appeal, all of which complain of jury argument. Appellant’s points 1 to 3, inclusive, read as follows:
“First Point
“The error of the trial court in failing and refusing to sustain Appellant’s objection to the argument of counsel for Appellee to the jury commenting upon the failure of counsel for plaintiff to put on the witness stand Wayne Allen and Leslie Howard, persons not peculiarly available to Appellant as witnesses.
“Second Point
“The improper and prejudicial conduct of counsel for Appellee in repeatedly commenting, in his argument to the jury, upon the failure of Appellant to put on the witness stand Wayne Allen and Leslie Howard, persons not shown to be peculiarly available to Appellant as witnesses.
“Third Point
“The grossly improper and highly prejudicial conduct of counsel for Appellee during his argument to the jury in telling the jury that he had statements from Wayne Allen and Leslie Howard that Joe Sanders had not told them of his injury on the day he was hurt and in stating to the jury, after objection had been sustained to the statements he had made, ‘here they are, if you want to look at them, the statements from the other witnesses that he didn’t put on’.”
Before the taking of testimony began, the rule was invoked. Witnesses present in the courtroom and sworn at the instance of appellant were identified as Dorsey Page, Wayne Allen, Benton Daniel, Joe Sanders and Annie B. Sanders.
Appellant Joe Sanders testified to the effect that he got hurt in the course of his employment on September 8, 1965, while lifting a heavy cabinet when he was alone. He testified further to the effect that he continued to work in pain until September 27, 1965, when he went to Dr. Morris, who put him in a hospital in Henderson for twelve days and gave him various treatments for his upper and lower back. After seeing Dr. Morris once or twice more he quit Dr. Morris and went to Dr. Lynch, in Tyler, who treated him regularly since he got out of the Henderson hospital.
He further testified to the effect that no one was around him when he sustained the injury to his back on September 8, 1965, but that he told his fellow employees Dorsey Page, Wayne Allen, and Leslie Howard on the same day that it happened of his injury. Wayne Allen boxed cabinets; Leslie Howard ran a saw, but he did not know what type of work Dorsey Page did. He testified to the effect that he did not tell his employer of his injury until after Dr. Morris put him in the hospital because he needed work and was hoping to get better so he could hold his job.
Appellant Sanders testified in detail as to his claimed injury, his disabilities to work, and the various treatments he received from Dr. Morris and that later he had been treated by Dr. Lynch for a long period and was still under his treatment at the time of the trial. Suffice it to say, the testimony of appellant Sanders, if given full credence by the jury, would have authorized a verdict in his favor for total and permanent incapacity, or at least a substantial recovery.
Annie Sanders, wife of appellant, as a lay witness, corroborated her husband in many respects. She testified that he came home on September 8, 1965, and told her about getting hurt that day on the job. She also corroborated him as to his being seriously disabled and related his various complaints of pain, his sleeplessness and restlessness at night from back pain, that he was stiff and could