13 S.W.2d 909 (Tex.Civ.App. 1929), 744, Floyd v. Fidelity Union Cas. Co.

Docket Nº:744. [a1]
Citation:13 S.W.2d 909
Opinion Judge:GALLAGHER, C.J.
Party Name:FLOYD v. FIDELITY UNION CASUALTY CO. ET AL.
Attorney:White & Yarborough, of Dallas, for appellant. Martin & Oneal, of Wichita Falls, for appellee.
Case Date:January 17, 1929
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 909

13 S.W.2d 909 (Tex.Civ.App. 1929)

FLOYD

v.

FIDELITY UNION CASUALTY CO. ET AL.

No. 744. [a1]

Court of Civil Appeals of Texas, Waco.

January 17, 1929

Rehearing Denied February 14, 1929.

Appeal from District Court, Falls County; E. M. Dodson, Judge.

Suit by Willie Teel Floyd against the Fidelity Union Casualty Company and another. Judgment adverse to plaintiff, and she appeals. Affirmed.

Page 911

White & Yarborough, of Dallas, for appellant.

Martin & Oneal, of Wichita Falls, for appellee.

GALLAGHER, C.J.

This suit was instituted by appellant, Willie Teel Floyd, against appellees, Fidelity Union Casualty Company and Frankie Floyd, to set aside a final order of the Industrial Accident Board on the conflicting claims of appellant and appellee Frankie Floyd against said casualty company for compensation for the death of Andrew Floyd. Andrew Floyd died from injuries sustained in the course of his employment as a laborer for the Rosebud Oil & Cotton Company. Said casualty company was the insurance carrier. Andrew Floyd left no minor children. Appellant and appellee Frankie Floyd each claimed to be the lawful wife of Andrew Floyd, and entitled to the compensation payable on account of his death. There was a trial by jury on special issues, a judgment in favor of Frankie Floyd against the casualty company for the lump sum of $3,148.13, and a further judgment that appellant, Willie Teel Floyd, take nothing herein. She alone has appealed. All the errors assigned relate to issues between said two claimants. No further reference to the insurance carrier need be made. Frankie Floyd will be regarded as sole appellee and referred to as such.

Opinion.

Appellant submits as fundamental error, assigned for the first time in her brief in this court, a proposition that the verdict of the jury is insufficient to support the judgment in favor of appellee, because it does not contain a finding that appellee was ever married to Andrew Floyd. Appellee introduced affirmative proof of her marriage to Andrew, and there was no attempt to controvert the same. Appellant introduced affirmative proof of her marriage to Andrew many years thereafter, and there was no attempt to controvert the same. No issue of the marriage to Andrew of either appellee or appellant was submitted, but such marriages, respectively, were treated as accepted facts. The court did submit: (a) Whether Andrew was divorced from appellee prior to his marriage to appellant; (b) whether appellee abandoned him without good cause for a period of three years prior to his death; (c) whether a manifest hardship and injustice would result if she were denied a lump sum settlement. The first two issues were answered "No," and the third "Yes." The only other issue submitted was whether appellant would suffer manifest hardship and injustice, if denied a lump sum settlement, which was answered "No." Neither appellant nor appellee requested the submission of any issues. Article 2185 of the Revised Statutes provides that only controverted questions of fact shall be submitted to the jury. Said statute is applicable in this case. Hebert v. New Amsterdam Casualty Co. (Tex. Com. App.) 3 S.W. (2d) 425, 426, par. 3; Adams v. Houston Nat. Bank (Tex. Com. App.) 1 S.W. (2d) 878, 879, par. 1; Pullman Co. v. G., C. & S. F. Ry. Co. (Tex. Com. App.) 231 S.W. 741, 743, 744; Western Union Tel. Co. v. Brown (Tex. Civ. App.) 285 S.W. 866, 867, 868. Since the marriage of appellee and Andrew Floyd was established by direct and affirmative evidence, which was in no way controverted nor discredited, a finding thereon by the jury was not necessary. It is therefore not necessary to determine whether an issue of fundamental error is submitted or not.

Appellant requested the court to charge the jury peremptorily to find in her favor, on the ground that the evidence was insufficient to justify the submission of the issue of whether Andrew had procured a divorce from appellee prior to his marriage to appellant. The facts that Andrew and appellee were married, lived together as husband and wife for many years, and reared a family, were undisputed. Appellee testified that they moved to Wichita Falls, Tex., in 1907, and lived together continuously until 1917; that she knew why Andrew left home; that in October of that year he got into trouble with a white woman named Pitts; that the woman was arrested and put in jail; that the officers came to their home, looking for Andrew, but that he had already gone; that the next day he telephoned from Gainesville, and inquired if any one had been looking for him; that she told him the police had been there asking for him, and that he said he would go further; that he wrote letters to her from Louisiana, and later from Alabama; that after he left she continued to live in Wichita Falls and ran a rooming house; that he came back home in August, 1918; that he stayed for a day or two; that he was afraid to stay longer, and left, and went to relatives in Gainesville and other points in North Texas; that he wrote her from said points, and also from Oklahoma; that he sent money for her support when he had it; that he worked at Henrietta, Tex., 18 miles from Wichita

Page 912

Falls, from 1919 to 1921, inclusive; that during that time he visited home and she visited him in Henrietta; that she did his washing for him during that time; that he left Wichita Falls about October, 1922, and that she did not see him again until in 1924, but that he wrote to her during that time, and that she always knew where he was; that he came home in 1924, and stayed awhile, and told her where he had been working during his absence; that he visited their home in Wichita Falls again about August, 1925; that he spent one night there with her; that at all these times when they were together they lived as husband and wife. She further testified as follows: "No, sir; I never did file suit for divorce against Andrew Floyd in any court in any county. No, sir; I never received any citation from any court wherein Andrew Floyd had ever given me notice that he ever sued me for divorce. Yes, sir; Andrew Floyd has known where I have lived all the time since I have been his wife, up until the time of his death. I have never been divorced from Andrew Floyd."

There was also testimony that Andrew was in Rosebud working for the oil mill at various times during all the years from 1922 to 1925, inclusive. Rosebud is situated in Falls county. Appellee introduced testimony showing that...

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