Bullock v. Texas Emp. Ins. Ass'n

• Decision Date: 05 December 1952
• Docket Number: No. 14553,14553
• Parties: BULLOCK v. TEXAS EMPLOYERS INS. ASS'N.
• Court: Texas Court of Appeals

Page 554

254 S.W.2d 554

BULLOCK v. TEXAS EMPLOYERS INS. ASS'N.

No. 14553.

Court of Civil Appeals of Texas, Dallas.

Dec. 5, 1952.

Rehearing Denied Jan. 16, 1953.

Bryan Bradbury, of Abilene, for appellant.

Burford, Ryburn, Hincks & Ford and Howard Jensen, all of Dallas, for appellee.

CRAMER, Justice.

This is an action to set aside a compromise settlement agreement entered into by appellant James M. Bullock, as employee, with appellee Texas Employers Insurance Association, as insurer of Bullock's employer, Abilene Brick Company, and approved by the Industrial Accident Board of Texas. Those named will be hereafter referred to as 'employee,' 'insurer,' 'employer,' and 'Board.'

Employee received injuries while in course of his employment with his employer on June 21, 1950 and again on June 30, 1950. On each occasion he went to doctors of his own choosing who examined and treated him. The doctors told him he was not seriously injured and that there was not much the matter with him and that he could return to work in two or three days. Employee believed his doctors and on July 21, 1950 entered into a compromise settlement agreement with the insurer, settling his claim for $50. Before the settlement was completed insurer's agent told employee of his interview with the doctors and, as a part of the settlement agreement, insurer agreed to pay, in addition to the $50, employee's doctors' bills. Employee was also informed that they would call on the doctors and secure statements from them and that said statements would accompany the agreement when submitted to the Board for approval. Insurer's claim agent on July 24, 1950 called on one of the doctors who had treated employee and received a statement containing in substance what the doctor had told employee. On July 25, the agent called on the other doctor of employee and secured his statement which was also in substance as he had theretofore advised employee. After the Board, on July 31, 1950, approved the compromise settlement agreement, insurer paid the $50 to employee, also the medical expense to the doctors as they had agreed in the compromise settlement. The compromise settlement agreement was on the usual form prescribed by the Board and was based on statutory grounds. After the present suit was filed the plaintiff filed his first amended original petition reciting the above facts as to the settlement, alleged further that the doctors' statements accompanying the settlement agreement were not correct, that his injury on June 21, 1950 was serious; that in the accident he fell backward on a pile of bricks and received injuries to his back, especially the lower part of his back, causing a vertebra to become out of alignment and causing a narrowing of the spaces between the vertebrae, which injuries were severe and painful. Further that on June 30, 1950 his second injury was also serious; that it was received by him while loading brick for employer, and at such time he also fell backward, injuring his body generally and especially his back; suffering a fracture of the intervertebral disc together with a subluxation of the sacro-iliac and a narrowing of the spaces between the vertebrae, throwing two or three of the vertebrae out of alignment. He alleged his visits to Dr. Little and Dr. Merrick, and their statements to him in substance as recited above; also his entry into the compromise settlement agreement to which the doctor's statements were later attached; its approval by the Board and insurer's payment thereafter according to its terms, and the payment to the doctors. He then alleged the injuries received by him, although unknown to him at the time, were in truth severe and permanent; had, and would, totally and permanently disable him from performing manual labor for the balance of his natural life. That the Texas Employers Insurance Association was the insurer of employer under the Workmen's Compensation Act; alleged his wage rate and other material facts and his total and permanent disability. He further alleged as follows:

'Now for the reasons that this plaintiff would not have signed and executed the compromise and settlement agreement had it not been represented to him as aforesaid that his injuries were not permanent and serious, and that his injuries have turned out to be serious and permanent, and the fact that he relief upon the representations made to him by the doctors who were paid by the defendant for their services herein and whose statements were used by the defendant herein for the purpose of getting a compromise settlement agreement approved, and relied upon by the plaintiff in entering into said compromise. settlement agreement, which representations were to the effect that the plaintiff was not seriously and permanently injured but, on the other hand, his injuries were not significant and that he would recover within two or three days and in truth and in fact plaintiff's injuries are serious and permanent and of such a nature that he has not recovered from them and will never be able to do the type of work he was formerly doing; that this plaintiff says that said compromise settlement agreement which he entered into with defendant herein and which was approved by the Industrial Accident Board on the 31st day of July, 1950, wherein this plaintiff was claimant in Claims Nos. 172952 and 173602, should in all things be set aside and held for naught.'

After the insurer's plea of privilege was sustained by the 42nd District Court of Taylor County, Texas, and the cause was transferred to the District Court of Dallas County, the insurer answered by general denial and especially denied employee suffered the accident alleged or that he had sustained any injuries on either of the occasions, but, if he did, they were superficial in character, in no way disabling, and had long since healed and had been cured;...