Lindsey et al. v. St. Paul Mercury Indemnity Co, 213 F.2d 535 (5th Cir. 1954)

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US Court of Appeals for the Fifth Circuit - 213 F.2d 535 (5th Cir. 1954) June 15, 1954

Reynolds N. Cate, San Antonio, Tex., for appellants.

Charles W. Barrow, San Antonio, Tex., W. B. Jack Ball, San Antonio, Tex., for appellee.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

STRUM, Circuit Judge.

This appeal is from the judgment of a federal district court in Texas, rejecting appellants' claim for Workmen's Compensation benefits under the laws of that state.

Appellant, William Allen Lindsey, alleges that when he was thirteen years old he was employed by Bire-leys Beverage Corporation in San Antonio. While pulling a "dolly" up a ramp, loaded with about seventy cases of bottles, he felt a sharp pain in his right groin which resulted in a hernia, of which injury he alleges he gave timely notice to his employer, Bire-leys, and to the Industrial Accident Board of Texas, but his claim was denied and this suit followed.

Appellee, defendant below, denied the occurrence of any accident and alleged that no notice of any kind was given. The trial court allowed an amendment by the plaintiff alleging a report of the alleged injury to the employer's foreman, James Herd, the giving of which appellee denied.

The case was submitted to the jury upon special issues, all of which were found in favor of the defendant below, including the issue as to the occurrence of an accidental injury, and notice. The trial court approved the verdict by denying plaintiff a new trial.

The transcript reveals no evidence which would tend to demonstrate that the verdict is wrong, or that there was error of any other nature in the trial. The judgment appealed from is therefore