Commercial Standard Ins. Co. v. Noack

• Decision Date: 16 November 1931
• Docket Number: No. 3690.,3690.
• Citation: 45 S.W.2d 798
• Parties: COMMERCIAL STANDARD INS. CO. v. NOACK.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

45 S.W.2d 798

COMMERCIAL STANDARD INS. CO. v. NOACK.^*

No. 3690.

Court of Civil Appeals of Texas. Amarillo.

November 16, 1931.

Rehearing Denied January 20, 1932.

Appeal from District Court, Lynn County; Gordon B. McGuire, Judge.

Suit by the Commercial Standard Insurance Company against Alexander Noack to set aside a compensation award made by the Industrial Accident Board under the Workmen's Compensation Law, in which defendant filed an answer and cross-action. From judgment for defendant and cross-complainant, plaintiff appeals.

Affirmed.

Touchstone, Wight, Gormley & Price and D. A. Frank, all of Dallas, and B. P. Maddox, of Tahoka, for appellant.

R. A. Baldwin, of Slaton, for appellees.

HALL, C. J.

The appellant insurance company instituted this suit to set aside the award of the Industrial Accident Board which had been rendered in favor of appellee, Noack. Noack had filed a claim for damages on account of injuries sustained by him on February 15, 1930, while employed as an automobile mechanic at Tahoka, Tex.

Noack filed an answer and cross-action in which he sought compensation for total and permanent disability, alleging that on February 15, 1930, while working as a mechanic for Snowden Chevrolet Company, he had inhaled carbon monoxide while working under an automobile which had resulted in total and permanent disability; that the gas had been taken into his lungs, penetrated his body, and resulted in serious injury to his heart. He prayed for compensation in a lump sum.

The case was submitted to a jury, who found: (1) That he was injured on the 15th day of February, 1930, in the course of his employment; (2) that his injuries resulted in total incapacity; (3) that such incapacity was permanent; and (4) that he should recover in a lump sum.

The jury failed to answer special issue No. 3 requested by plaintiff, which is as follows: "Was the defendant Alexander Noack, suffering from mitral regurgitation of the heart on and immediately prior to February 15, 1930?"

In answer to special issue No. 1, requested by the defendant, the jury further found that breathing such gas by Noack contributed with the diseased condition of his heart in causing his present disability.

Based upon the verdict, the court rendered judgment in appellee's favor for matured compensation of 56 weeks at $17.31 per week and accrued interest thereon, aggregating $1,001, and for the remaining 345 weeks of unmatured compensation rendered a lump sum judgment with 6 per cent. discount, adjudging one-third of the recovery to the appellee's attorney.

It appears that, because no testimony had been presented showing what would have been a reasonable rate of discount in computing the lump sum, appellee and his attorney filed a remittitur in the trial court of the judgment in so far as it decreed the rate of discount and required the unmatured installments, after discount, to be paid in a lump sum.

The first matter to be considered is appellee's motion to strike the statement of facts because part of the statement is in narrative form and part in question and answer form.

The statement of facts was filed June 4, 1931. The Forty-Second Legislature passed two acts amending R. S. art. 2239. The first act, being chapter 63, page 97, of the General Laws of the Forty-Second Legislature, was approved April 21, 1931, and the bench and bar of Texas generally understood at the time of its approval that the law had become effective immediately, which provided that a statement of facts might be prepared in either narrative or question and answer form. The note by the secretary of state appended to the act (page 98) shows that the bill passed the Senate by a viva voce vote, but whether by majority of two-thirds vote does not appear, and under the Constitution, art. 3, § 39, it could not become effective until ninety days after adjournment, or until August 21, 1931. However, at the same session, H. B. No. 120, being chapter 135, page 228, of the Acts of the same Legislature, and which also provides that a statement of facts may be either in narrative or question and answer form, was approved by the Governor May 18, 1931, and the secretary of state's note appended to the act shows that it passed both the House and the Senate by the requisite vote to put it into immediate effect.

In the case of Missouri, K. & T. Ry. Co. v. Waggoner, 102 Tex. 260, 115 S. W. 1172, 1173, where the acts of 1905 and 1907 were under consideration and where it was sought to strike the statement of facts because it did not comply with the requirements of the last act, the court said: "Statutes regulating such procedure are directory, and rights are not always to be lost by the failure to follow them. The provision of the act of 1907, intended to secure the condensation of statements of facts, is an important one, and a disregard of it ought generally to be held to be a just reason for refusing to consider the statement, but such a consequence might operate too severely if applied in cases where the fault was due only to the confusion incident to recent changes in the law, and to doubts as to which law applied."

We think this language is applicable, because, at the time the statement of facts was in course of preparation, H. B. No. 120 had become a law and was in force at the time the statement of facts was filed, and in view of such confusion we think it would be inequitable to strike the statement in this case. Because the statement under consideration is partly narrative and the remainder in question and answer form, is not a defect for which the statement should be stricken. Under District and County Court Rule 72, which provides that, where the evidence is sufficient to establish a fact, the testimony of witnesses and all deeds, wills, records, or other instruments relating thereto should not be copied in detail, but the facts thus established should be stated as facts proved in the case, it is no ground for striking the statement because it is prepared both in narrative and question and answer form. If a statement of facts sets out documentary evidence in full when it might have been briefly stated as to its substance, this would be ground for taxing the additional cost incident to copying the instrument in full against the appellant, but the statement should not be stricken for that reason.

The appellee also moves to strike the appellant's brief because it is not shown therein that the propositions are germane to any assigned error, because there is no proper statement of any errors, and because there is no showing in the brief that any errors are relied on upon which the appeal is predicated.

We find at the back of the brief 147 assignments of error, and it is our duty to assume that the appeal is predicated upon at least some of them. In fact, the brief seems to be long on assignments of error. We regret to say that it is held that the propositions do not have to expressly refer to assignments of error or show to which particular error assigned they are germane. 3 Tex. Jur. 889, § 618.

This court did not hold in Heatley v. W. P. Ponder & Sons, 40 S.W.(2d) 951, that it was not necessary to have assignments of error in the brief. The brief in that case contains assignments of error, though they were not so designated. To assign means "to point out with precision; particularize; specify" (Standard Dictionary), and the errors were specifically pointed out in the brief filed in that case. As we understand the amendment to article 1757 by the Forty-Second Legislature, c. 45, § 1 (Vernon's Ann. Civ. St. art. 1757) which prescribes the requisites of a brief, it requires a brief to contain, among other matters, "2. The alleged error or errors upon which the appeal is predicated. * * * 4. A statement and/or argument on the errors assigned." It is clear from this language that the Legislature intended every brief to contain an assignment of error by whatever name it might be designated. The amendment by the Forty-Second Legislature, c. 75, § 1 (Vernon's Ann. Civ. St. art. 1844), of article 1844 manifest a clear intention that assignments of error should be filed in all cases appealed, but relieves both parties of the duty of filing independent assignments in the trial court, and requires the assignment to be set out in the brief only. In other words, the effect of the amendment is to relieve the appellant, whether or not he has filed a motion for new trial in the lower court, of the duty of filing additional formal assignments of error in that court before taking out the transcript, Lamar-Delta County Levee Improvement District v. Dunn (Tex. Civ. App.) 42 S.W.(2d) 872; and the appellate court, in the absence of such assignments in the brief, is restricted to the consideration of errors which are fundamental, Jennings-Progress Common School District v. Marvin School District (Tex. Civ. App.) 42 S.W.(2d) 805. We overrule both motions.

We think the remittitur entered in the lower court cured the error in so far as it awarded a recovery in a lump sum.

By the third proposition the appellant insists, because under the undisputed testimony showing that the injuries complained of by appellee resulted from his breathing gas from the exhaust pipe of an automobile for more than an hour while engaged in the usual course of business, that therefore the injury is not the result of an accident, but is an occupational disease for which no compensation can be recovered under the Workmen's Compensation Law (Vernon's Ann. Civ. St. arts. 8306-8309). We overrule this contention.

Appellant has not challenged the sufficiency of appellee's allegations setting up accidental injury. Suffice it to say they are sufficient and are fully supported by the testimony of the appellee and by Carl Alexander and other witnesses.

In the case of Barron v. Texas Employers' Insurance Association (Tex. Com. App.) 36 S.W.(2d) 464, an accidental injury is defined as one occurring unexpectedly not in the...