Aetna Casualty & Surety Co. v. Block

• Decision Date: 17 April 1942
• Docket Number: No. 1998.,1998.
• Citation: 161 S.W.2d 872
• Parties: AETNA CASUALTY & SURETY CO. v. BLOCK.
• Court: Texas Court of Appeals

161 S.W.2d 872

AETNA CASUALTY & SURETY CO. v. BLOCK.

No. 1998.

Court of Civil Appeals of Texas. Eastland.

April 17, 1942.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Suit under the Workmen's Compensation Act by Aaron L. Block, employee, to set aside an award of the Industrial Accident Board, opposed by the Aetna Casualty & Surety Company, insurance carrier. From an adverse judgment, the insurance carrier appeals.

Reversed and remanded.

See, also, 142 S.W.2d 445; 159 S.W.2d 470.

R. H. Ratliff and Thomas R. Smith, both of Colorado City, for appellant.

Smith & Smith, of Anson, and Eli Goldstein, of San Antonio, for appellee.

FUNDERBURK, Justice.

Upon the original hearing of this case, this court in an opinion of date March 22, 1940, affirmed the judgment of the court below upon condition of a remittitur in the sum of $501.50, which was made. On rehearing, in an opinion of date April 26, 1940, based upon a ground of fundamental error, we set aside the former judgment and reversed and remanded the case. Upon a motion for rehearing by appellee Block, we reached the conclusion that under the uncontroverted evidence Block received his injury while in the course of his employment by L. Zweig in the junk business, as to which said employer had provided no compensation insurance. Upon that conclusion and the further determination that there was no estoppel, as contended, we set aside all former opinions and judgments and reversed the judgment of the court below and rendered judgment for appellant, Aetna Casualty & Surety Company. 142 S.W.2d 445, 447.

As to questions other than the two above mentioned as dealt with in the last opinion we said: "These conclusions render other questions raised by appellant unnecessary to be determined."

The Supreme Court, having taken jurisdiction of the case by writ of error, while expressing no opinion as to whether the compensation insurance covered only the dry goods business — the only business the insured employer had at the time the policy was issued — or whether it covered also the junk business in which the employer had subsequently engaged, held, in effect, that the evidence did not establish conclusively that Block's injury was received while in the course of his employment in the junk business; that the evidence raised an issue of such fact which was concluded in favor of the judgment for Block by the affirmative answer of the jury to special issue No. 5 reading as follows: "Do you find from a preponderance of the evidence that the personal injury, if any, received by the plaintiff, Aaron L. Block, was received by him while he was engaged in the course of his employment for L. Zweig?" (Note, see p. 874.)

Our judgment being reversed, the Supreme Court remanded the case to this court, 159 S.W.2d 470, 471, for the reason that we, having stated that our conclusions rendered it unnecessary to pass upon other questions raised by appellant, it was deemed by the Supreme Court to be "now necessary to pass on these assignments."

Some of these other questions were discussed in our said first opinion which was withdrawn. One of them, we may now dispose of by quoting and adopting the language from said withdrawn opinion as follows:

"One action of the court made the ground of an assignment of error was `in permitting E. M. Critz to continue to appear as counsel for plaintiff upon the trial of this cause' etc. The bill of exceptions purportedly constituting the record supporting said assignment of error does not, we think, manifest any error. It shows no objection to the action of which complaint is made. In other words, the record fails to show that insurer called upon the court to make any ruling or take any action in the matter.

"Further, the record shows that the firm of Critz & Woodward, of which E. M. Critz was a member, were attorneys of record for the employee. It was wholly immaterial that the employee did not employ them, or that the employer did employ them. Only the employee had a right to object to their appearance as his attorneys and the absence of any such objection shows an acceptance of their services."

Another question may be here disposed of by adoption from said former opinion, as follows:

"The employee, by his petition, claimed $1,000 for `medicine, surgery, ambulance, nurse and doctor's bills.' To this the insurer directed an exception that `no allegations are contained in such petition showing any liability upon the part of the defendant for such doctor bills, medicines, surgical attention, hospitalization and nurse hire, or any of such items.' This exception, although purporting to be a special exception, was in fact a general exception to a particular part of the employee's petition relating to a segregated item sought to be recovered.

"The action of the court in overruling the (so-called) special exception is assigned as error, the supporting reason being that it was not alleged that such expenses were incurred during the first four weeks after the injury or extensions of such period as provided in R.S. 1925, Art. 8306, sec. 7. We think the exception, though general, should have been sustained, except as to the item of $100 for Dr. Bowyer. The latter would seem to come under the provision reading "at the time of the injury or immediately thereafter, if necessary, the employee shall have the right to call in any available physician or surgeon to administer first-aid treatment as may be reasonably necessary at the expense of the association.' As to all of the other items to which the exception was directed there is no liability for same provided by law, unless they were incurred within the time or manner prescribed. Indemnity Ins. Co. v. Garsee, Tex.Civ.App., 54 S.W.2d 817; Lumbermen's Reciprocal Ass'n v. Wilmoth, Tex.Com.App., 12 S.W.2d 972; Maryland Cas. Co. v. Merchant, Tex.Civ. App., 81 S.W.2d 794. The judgment awards recovery of $601.50 for medical and hospital expenses. ...