Travelers Insurance Company v. Wade

ON REHEARING

In its motion for rehearing appellant cites us to The Travelers Insurance Co. v. Linder, Tex.Civ.App., 368 S.W.2d 797, and earnestly argues that since no one testified that Wade’s injuries were total and permanent we were in error in finding that the evidence was sufficient to uphold the jury’s verdict. In the cited case as in the case now before us only the testimony of lay witnesses was offered in behalf of the plaintiff. In this case, however, there was testimony favorable to appellant presented by medical witnesses.

Appellee and his five lay witnesses, including appellee himself, are not open to criticism for their failure to testify that ap-pellee’s injury was total and permanent. The general rule is that such testimony from a lay witness is not admissible over objection. Federal Underwriters Exchange v. Simpson, Tex.Civ.App., 137 S.W.2d 132, 136; Maryland Casualty Co. v. Sledge, Tex.Civ.App., 46 S.W.2d 442, 445; Tex. Employers’ Ins. Ass’n v. Brock, 36 S.W.2d 704, 706 (Tex.Com.App.); Stowell v. Tex. Employers’ Ins. Ass’n, Tex.Civ.App., 259 S.W. 311, 317. There are exceptions to the rule. For example, one who has lost an arm would certainly be permitted to testify that his injury was permanent. But no such situation is presented here.

Notwithstanding the general rule prohibiting a lay witness from expressing an opinion that injuries are total and permanent, it is well settled that the factual testimony of a claimant alone, or of other lay witnesses, will support a jury finding of total permanent disability. The jury may reasonably infer total and permanent disability from circumstantial evidence. And this is true though the lay evidence may be contradicted by the testimony of medical experts. Travelers Inc. Co. v. Helstrom, Tex.Civ.App., 351 S.W.2d 321, err. ref. n. r. e.; Consolidated Casualty Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706, err. ref. n. r. e.; The Ins. Co. of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772, err. ref. n. r. e.; Western Casualty & Surety Co. v. Mueller, Tex.Civ.App., 169 S.W.2d 223, err. ref. w. o. m.; American Motorists Ins. Co. v. Black, Tex.Civ.App., 253 S.W. 678, no wr. hist.; Lumbermen’s Mutual Casualty Co. v. Zinn, Tex.Civ.App., 220 S.W.2d 906 err. ref.; Lott v. American Surety Co. of N. Y., Tex.Civ.App., 140 S.W.2d 928, no wr. hist. It is to be remembered that the Workmen’s Compensation Act is to be liberally construed in favor of the claimant. Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73.

The determination of whether the evidence is so contrary to the overwhelming weight of the evidence as to be manifestly unjust is a fact finding function of the Court of Civil Appeals. But that fact finding function does not extend so far as to permit a Court of Civil Appeals to substitute its findings for those of the trial court simply because the appellate court might have made a different finding if it had been *886the original trier of the facts. Consolidated Casualty Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706, 715; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

After a careful consideration of appellant’s motion for rehearing we are convinced that our original decision in this case was correct.

Appellee has also filed a motion for rehearing. We see no merit in his motion.

The motions of appellant and appellee are both overruled.