Casualty Reciprocal Exchange v. Stephens

• Citation: 45 S.W.2d 143
• Decision Date: 06 January 1932
• Docket Number: No. 1284-5756.,1284-5756.
• Parties: CASUALTY RECIPROCAL EXCHANGE v. STEPHENS.
• Court: Supreme Court of Texas

45 S.W.2d 143

CASUALTY RECIPROCAL EXCHANGE v. STEPHENS.

No. 1284-5756.

Commission of Appeals of Texas, Section B.

January 6, 1932.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by W. A. Stephens against the Casualty Reciprocal Exchange to set aside an award by the Industrial Accident Board. A judgment for plaintiff was affirmed by the Court of Civil Appeals [25 S.W.(2d) 180], and defendant brings error.

Affirmed.

E. C. Gaines, of Austin, and Nat Harris, of Waco, for plaintiff in error.

Bryan & Maxwell, of Waco, for defendant in error.

RYAN, J.

This suit was by defendant in error to set aside an award made by the Industrial Accident Board, and resulted in a judgment, based on a jury's verdict in answer to special issues, for defendant in error for a lump sum settlement, which was affirmed by the Court of Civil Appeals. 25 S.W.(2d) 180.

The undisputed evidence showed that defendant in error was employed as fireman at the plant of the Big Four Ice & Cold Storage Company in the city of Waco, and had been so employed for more than two years next preceding the injury. He worked seven days a week for fifty-two weeks during the year preceding the injury at $26.25 per week, except such times as he was unable to work and for such time his weekly wages were reduced on a basis of $3.75 per day. The wage sheet shows that he worked every week during the year and earned $1,322.95 for the year.

His employer's business required the machinery of its ice plant to be run constantly, and no fireman was employed who would not agree to and did not work seven days in each week.

It was necessary for the boilers of the plant to be continuously kept in operation day and night to preserve the temperature of tanks in which the ice is frozen. It was his duty to fire the boilers and control the steam and water in the boilers. He worked from 5:30 o'clock in the afternoon through the night and until 5:30 o'clock the next morning; another fireman worked the other shift from morning to afternoon.

He weighed about 235 pounds, and, while standing on a ladder and engaged in repairing certain machinery, fell about fifteen feet to a concrete floor, and sustained certain injuries claimed to be total and permanent.

The jury found that on October 21, 1928, defendant in error, in the course of his employment with the Big Four Ice & Cold Storage Company, sustained personal injuries totally and permanently incapacitating him to work; that this is a special case in which manifest hardship and injustice will result to him if compensation is not paid in a lump sum; that 6 per cent. is a reasonable rate of discount to be allowed in the event a lump sum is awarded. The jury found also that defendant in error's average weekly wage, at the time of his injury, was $25.44, and his average daily wage at that time and for the period of the preceding year was $4,409; that he suffered permanent disability as a result of the injuries received other than to the wrist and knee; and that he did not suffer any permanent partial impairment to his left knee.

This latter finding is not inconsistent with the previous findings of permanent disability as a result of injuries received other than to the wrist and knee, and that the injuries received totally incapacitated Stephens to work and such total incapacity is permanent.

In answer to issue No. 3, the jury found that the injury totally incapacitated Stephens to work, and in answer to issue No. 4 that said total incapacity was permanent. Issue No. 13 asked the jury to determine whether appellee had suffered any permanent partial impairment to his left knee, which the jury answered "No." That defendant in error had not suffered a permanent partial injury to his left knee is not in any way in conflict with the finding that as a whole he suffered a total and permanent injury. Neither is issue No. 4 duplicitous. By issue No. 1 the trial court asked the jury if appellee was injured. By issue No. 2 he asked if the injuries, if any, were sustained in the course of his employment with the Big Four Ice & Cold Storage Company. By issue No. 3 he asked whether the injury, if any, had totally incapacitated appellee to work, and by issue No. 4 asked, "Is such total incapacity, if any, permanent?" The jury answered "Yes" to each of said questions. We think special issue No. 4, when read in the light of and in connection with the preceding questions, was not in any way duplicitous.

The Court of Civil Appeals held that the findings of the jury as to permanent total disability are supported and were established by competent evidence.

It is contended that the trial court erred in refusing the plaintiff in error's request for a physical examination of the injured party, to be made by three competent physicians at its expense; this assignment cannot be considered, because there is no bill of exception in the record upon which to base same, and the record does not reveal any action of the court upon such request.

The record discloses that the only action taken was the filing on May 15, 1929, of the motion by the defendant below praying the court to cause plaintiff below to submit to such examination and an answer thereto under oath. The record does not show what action, if any, was taken by the court thereon, and no bill of exception was reserved. Weatherford, M. W. & N. W. Ry. Co. v. Smith (Tex. Civ. App.) 170 S. W. 133 (writ of error refused); 3 Tex. Jur., § 411.

The matter of permitting reasonable examinations of the claimant is within the discretion of the trial court, and its action will not be reviewed unless it is made to appear that such discretion has been abused. U. S. Fidelity & Guaranty Co. v. Nettles (Tex. Com. App.) 35 S.W.(2d) 1045. Whether such discretion has been abused can be shown on appeal only through a proper bill of exceptions, which necessarily must show the ruling of the court, neither of which appear in this record.

In response to a special issue the jury found that 6 per cent. per annum was a reasonable rate of discount to be allowed in event a lump sum settlement was made. Plaintiff in error contends that the rate of discount is a question of law exclusively for the court and such issue should not have been submitted to the jury. This identical contention was made in Herzing v. Texas Employment Ins. Ass'n (Tex. Com. App.) 17 S.W.(2d) 1046, and in U. S. Fidelity & Guaranty Co. v. Nettles (Tex. Com. App.) 35 S.W.(2d) 1045, and decided adversely to such contention.

The trial court committed no error in submitting that issue; it having been alleged that 6 per cent. per annum was a reasonable discount, and the proof offered supported the allegation.

Plaintiff in error contends that its general demurrer to the original petition and its request for an instructed verdict should have been sustained, because the terms of employment required Stephens to work seven days in the week, the injury occurred on Sunday, and the petition fails to allege any fact bringing the employment under some exception to the criminal statutes prohibiting labor on the Sabbath.

The uncontroverted evidence showed that it was necessary for the machinery to be operated every day in the week and to keep the boilers going continuously and have the fireman there to look after the same.

Article 283 of the Penal Code makes it an offense for any person to work on Sunday; article 284, however, provides that said article shall not apply to "works of necessity."

The precise question, whether operating an ice factory on Sunday is a work of necessity, was before the Court of Appeals in Hennersdorf v. State, 25 Tex. App. 597, 8 S. W. 926, 8 Am. St. Rep. 448, and that court, in an opinion by Judge Hurt, under a state of facts almost identical with those in this case, held that labor in operating an ice factory on Sunday is a work of necessity and comes within the exception.

The authorities in this state seem to agree that the term "necessity" as used in this statute, is defined to be not an absolute unavoidable physical necessity, but rather an economic and moral necessity, which might grow out of or be incident to a particular trade or calling. Lane v. State, 68 Tex. Cr. R. 4, 150 S. W. 637; Hennersdorf v. State, 25 Tex. App. 597, 8 S. W. 926, 8 Am. St. Rep. 448; Maryland Casualty Co. v. Garrett (Tex. Civ. App.) 18 S.W.(2d) 1102.

It is insisted that the trial court had no jurisdiction, because the award itself as made by the Industrial Accident Board was not filed in the trial court within twenty days after notice of appeal was given, notwithstanding the pleadings properly allege the making, date, and effect of such award, and allege a case within the jurisdiction of the court, duly filed within the prescribed time. It is insisted that the filing of the award is the controlling jurisdictional fact. We are not in accord with this contention.

The petition alleges that proper notice of the injury was given to the employer within thirty days from the happening thereof, and claim for compensation therefor was made to the Industrial Accident Board within six months as is by law required; that final award was made by said board, on February 21, 1929; that on or about February 26, 1929, and within twenty days from the date of said final award, notice was given by the claimant to the board, the defendant, and its attorney, that claimant would not abide by said award; and that this suit was filed within twenty days from the date of the service of said notice, in a competent court of McLennan county, in which county the injuries occurred. The petition was filed on March 8, 1929.

As said in Hood v. Texas Employers' Ins. Ass'n (Tex. Civ. App.) 260 S. W. 243, 245, approved in Mingus, Receiver, v. Wadley, 115 Tex. 559, 285 S. W. 1084, construing the Workmen's Compensation Act, jurisdiction of the trial court to hear and determine this character of suit depends "on the following prerequisite proceedings which should be...