Casualty Reciprocal Co. v. Stephens

• Decision Date: 06 February 1930
• Docket Number: No. 895.,895.
• Parties: CASUALTY RECIPROCAL CO. v. STEPHENS.
• Court: Texas Court of Appeals

25 S.W.2d 180

CASUALTY RECIPROCAL CO. v. STEPHENS.

No. 895.

Court of Civil Appeals of Texas. Waco.

February 6, 1930.

Rehearing Denied February 27, 1930.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by W. A. Stephens to set aside an award of the Industrial Accident Board and recover compensation, opposed by the Casualty Reciprocal Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

E. C. Gaines, of Austin, and Nat Harris, of Waco, for appellant.

Bryan & Maxwell, of Waco, for appellee.

BARCUS, J.

Appellee instituted this suit to set aside an award made by the Industrial Accident Board and recover compensation under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309, as amended). The cause was submitted to a jury on special issues and resulted in judgment being entered for appellee for a lump sum settlement.

By various propositions appellant contends there was no pleading, or evidence to support the judgment for permanent total disability, and that appellee's pleadings were not sufficient to support a lump sum settlement, and also contends that, since the injury proved was primarily to the left knee and right wrist, in no event could appellee recover for total permanent disability. We overrule all of these propositions. We think the pleadings are sufficient to support the judgment both for permanent total disability and a lump sum settlement. It was shown without dispute that appellee was employed by the Big Four Ice & Cold Storage Company, which carried compensation insurance, as a fireman. He weighed 235 pounds, and, while standing on a 15-foot ladder, fell on a concrete floor and broke his left kneecap, fractured his right wrist, suffered a severe cut over the eye, broke his nose, knocked out four of his teeth, was knocked unconscious, and he was confined in a hospital for seven weeks. The case was tried seven months after the injury and appellee testified that he was still suffering severe pains in the head; that he had no strength in and no use of his right hand; was still unable to walk on his left leg without a crutch; that the injury to his eye had caused and was at that time causing his head to hurt; that before he was injured he was a stout, robust, healthy man, but since he had not been able to work. Dr. Kee testified that in his opinion appellee's injuries were total and permanent. The physicians placed on the stand by appellant testified that appellee would never be able to as efficiently do the kind of work he had been doing before. We think the evidence supports the findings of the jury. While article 8306 of the Revised Statutes, as amended in 1927 (Gen. & Sp. Laws 40th Leg., p. 41, c. 28, § 1), provides that certain injuries, among others, the loss of one hand and one foot, would as a matter of law be held to be a total and permanent injury, it specifically provides that the enumeration contained therein should not be exclusive. There is no specific method nor any hard and fixed rule of evidence required for a claimant to establish the fact that he had suffered an injury that caused a permanent total disability, but, like any other issue of fact, is to be established by competent evidence. Standard Accident Insurance Co. v. Williams (Tex. Civ. App.) 4 S.W.(2d) 1023, Id. (Com. App.) 14 S.W.(2d) 1015; Southern Surety Co. v. Lacoste (Tex. Civ. App.) 7 S.W.(2d) 197 (error refused).

In response to a special issue the jury found that six per cent. per annum was a reasonable rate of discount to be allowed in event a lump sum settlement was made. Appellant complains of the trial court having submitted said issue to the jury, its contention being that the rate of discount was a question of law exclusively for the court. It did not, however, in any way suggest to the trial court what it thought was the correct rate of discount to be allowed. The decisions of our courts are in a somewhat chaotic condition with reference to the rate of discount to be allowed. In United States Fidelity & Guaranty Co. v. Nettles, 21 S.W.(2d) 31, in which case the Supreme Court has granted a writ of error, this court held that, where no evidence was offered thereon, and no issue had been submitted to the jury relative thereto, that six per cent. per annum was the correct rate to be allowed by the trial court as a matter of law. In the instant case appellee alleged that six per cent. per annum was a reasonable discount and offered proof in support thereof, and the jury so found. Appellant in its brief states that it thinks six per cent. per annum is as a matter of law the correct discount to allow. Since it does not appear that appellant has suffered any injury by the issue having been submitted to the jury, same, if error, was harmless. Appellant's contention that the submission of the issue was an intimation on the part of the court that the jury should allow a lump sum settlement is, we think, untenable and without merit.

In answer to special issues submitted, the jury found that appellee's weekly wage for the year preceding the injury was $25.44, and that his daily wage was $4,409. Appellant contends that the trial court was in error in submitting either of said issues to the jury, because it claims that the evidence showed without dispute that appellee was receiving $3.75 per day, and that his weekly wage, under article 8309 of the Revised Statutes, would be 300 times that amount divided by 52, or $21.634. The record shows without dispute that appellee had for more than a year previous to the injury worked seven days each week at $3.75 per day, or $26.25 per week, except such time as he was unable to work, and for such time his weekly wages were reduced on a basis of $3.75 per day. His employer testified that appellee's wage was $3.75 per day, and that appellee was required to work seven days in each week, since the business in which they were engaged required the machinery to be run constantly, and that no fireman was employed who would not agree to and did not work seven days in each week. Appellant offered in evidence without objection the daily and weekly wages appellee had received for the year preceding the injury, which showed that he had received a total of $1,322.95. The court instructed the jury that in arriving at the weekly wage they should divide the earnings for the preceding twelve months by 52, and that in ascertaining the daily wage they should divide the annual earnings by 300. This resulted in the jury finding the weekly wage $25.44 and the daily wage $4.409, since it was undisputed that appellee had earned the preceding year $1,322.95. Thus it appears that by the method adopted the jury found appellee's weekly wage less than the admitted testimony shows, and the daily wage more than the undisputed testimony shows. The trial court having based its judgment on...