Bankers Lloyds v. Pollard

• Court: Texas Court of Appeals
• Writing for the Court: Hall
• Citation: Bankers Lloyds v. Pollard, 40 S.W.2d 859 (Tex. App. 1931)
• Decision Date: 24 June 1931
• Docket Number: No. 3577.,3577.
• Parties: BANKERS LLOYDS v. POLLARD.

40 S.W.2d 859

BANKERS LLOYDS v. POLLARD.

No. 3577.

Court of Civil Appeals of Texas. Amarillo.

June 24, 1931.

Rehearing Denied July 11, 1931.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Suit under the Workmen's Compensation Act by Ross Pollard, employee, opposed by G. M. Hamer, employer, and the Bankers Lloyds, insurer, to set aside an unsatisfactory order of the Industrial Accident Board. From a judgment in favor of employee, insurer appeals.

Affirmed.

Mathis & Caldwell, of Wichita Falls, and Crate Dalton, of Dallas, for appellant.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellee.

HALL, C. J.

This suit arose under the Workmen's Compensation Law (Rev. St. 1925, art. 8306 et seq. as amended). The appellee alleged that he was injured while he was an employee of G. M. Hamer, a subscriber under the act. That the appellant insurance company had issued a policy to Hamer as subscriber, which was in full force and effect on October 31, 1929. That on said last-named day plaintiff, as employee of Hamer under a verbal contract of hire, while driving a truck for his employer, was earning $35 per week, "which was the usual and customary wage which an employee of the same place of that of the plaintiff herein earned in the same or similar employment for twelve months preceding the day of the injury to plaintiff." He alleged that while engaged in the course of his employment he suffered a right inguinal hernia. That said hernia appeared suddenly and immediately and caused him great pain and required the services of a doctor. That he gave due notice of the accident, requested that he be operated upon, which was refused, and that as a result of such injury and accident he was permanently and totally incapacitated and disabled. That on the 20th day of February, 1930, the Industrial Accident Board entered its final ruling, and in due time thereafter plaintiff gave notice of appeal and did appeal from said ruling. He prays that he be awarded a lump-sum settlement with 6 per cent. discount, and in the alternative alleged that if he is not totally and permanently disabled, that he has suffered a 50 per cent. permanent partial disability and prays for judgment accordingly.

The defendant answered, denying that the injuries complained of by plaintiff were received in the course of his employment. That they did not result in hernia, but that said hernia had existed long prior to October 31, 1929, and that it did not appear suddenly or immediately, and that plaintiff did not suffer any pain at the time of the alleged injuries.

A trial to the jury resulted in a verdict and judgment in favor of appellee, awarding him $6,628.19, payable in a lump sum, with interest and costs. The jury found that plaintiff was totally and permanently disabled.

The first contention to be considered relates to the insufficiency of appellee's petition in that it did not allege that he had worked in the same or similar employment for substantially a year prior to his injury, was defective in not alleging the wages earned by him or other employees in similar work, and contained no allegation of the time when he commenced to work for Hamer or that he had worked substantially for a year for Hamer or in similar employment in the same locality.

No demurrers or exceptions were urged to the petition because of these alleged defects, and no objection was made to the testimony offered, showing the period of time appellee had been engaged in the same employment or the amount earned by him during the twelve months next preceding the injury. The testimony shows without contradiction that he had been residing in Wichita county since 1920, during all of which time he had been employed as a truck driver. It further showed that during the year immediately preceding his injuries he worked every day, including Sunday, and had received for his services $5 per day. If appellant had urged exceptions to the petition upon the grounds insisted upon here, the court doubtless would have sustained them, but they must be considered as waived, and the defects, not being jurisdictional, cannot be urged upon appeal, since they are cured by the verdict. General demurrers, though pleaded, which were not presented and urged in the court below or disposed of by proper orders, are deemed to be waived upon the theory that everything possible must be presumed in aid of the petition. Southern Surety Co. v. Morgan (Tex. Com. App.) 16 S.W.(2d) 533. See also Ayres v. Ayres (Tex. Civ. App.) 32 S.W. (2d) 655, where it is held, even in a divorce suit, that if the issues joined necessarily required proof of facts imperfectly stated or even omitted in the petition, the defect is cured by the verdict if the facts established by proof offered are not challenged by the appellant. Especially is this the rule in actions arising under the Workmen's Compensation Act where the construction of the pleadings must be liberally made in favor of the complainant. Southern Casualty Co. v. Weaver (Tex. Com. App.) 273 S. W. 838.

Proof that the appellee had been working for one year and longer next preceding the injury at $5 per day, including Sunday, is proof that his weekly wage was $35. Howard v. Texas Employers' Insurance Ass'n (Tex. Com. App.) 292 S. W. 529.

The judgment is for a lump sum based upon appellee's right to recover $20 per week for a period of 400 weeks, aggregating $6,628.19, and we think the amount decreed is approximately correct. Plaintiff did not specifically pray for interest and was not entitled to recover interest on the sum awarded,...