Commercial Standard Ins. Co. v. Shank

• Decision Date: 24 April 1940
• Docket Number: No. 8902.,8902.
• Citation: 140 S.W.2d 273
• Parties: COMMERCIAL STANDARD INS. CO. v. SHANK.
• Court: Texas Court of Appeals

Page 273

140 S.W.2d 273

COMMERCIAL STANDARD INS. CO. v. SHANK.

No. 8902.

Court of Civil Appeals of Texas. Austin.

April 24, 1940.

Rehearing Denied May 15, 1940.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Suit under the Workmen's Compensation Act by the Commercial Standard Insurance Company to set aside an award of the Industrial Accident Board in favor of W. E. Shank. From an adverse judgment, plaintiff appeals.

Affirmed.

Todd, Crowley & Thompson, of Fort Worth, for appellant.

Callaway & Callaway, of Brownwood, for appellee.

BAUGH, Justice.

This is a Workman's Compensation case. J. G. Gorman was the employer, Shank the employee, and appellant the insurer. Shank received injuries to his right arm on August 27th and September 4, 1937, in the course of his employment, for which he was, on December 23, 1937, awarded compensation for eight weeks total and ten weeks 20% partial incapacity, totaling $90. He did not appeal from this award, but declined to accept it, and on January 4, 1938, so advised the Industrial Accident Board.

Subsequently he induced the Board to reconsider his case, furnished additional evidence, the Board set aside its former award, and on June 6, 1938, made a new award on its finding of 8 weeks' incapacity and 30% partial permanent incapacity. The insurer seasonably filed this suit to set aside the latter award. Trial was to a jury on special issues. They found that appellee's injuries resulted in total incapacity for 60 days and thereafter in permanent partial incapacity to the extent of 50%. They also found, in answer to special issues, that Shank, the doctor who originally examined him and reported thereon, and the insurer, were all mistaken as to the nature and extent of Shank's injuries, in the reports made to the Board on which it made its first award on December 23, 1937. Judgment, based upon these findings, was rendered in favor of appellee for $353.33 past due installments, and $4.50 per week for the 133 weeks remaining of the compensation period. The insurer has appealed.

No complaint is made as to the jury findings nor the amount of the judgment. Three contentions are presented on this appeal: (1) That the court should have defined the term "partial incapacity" as used in special issues 5, 6 and 7; (2) that he should have defined the term "mistaken" as used in special issues 8, 9 and 10; and (3) that the award of December 23, 1937, was a final award, not seasonably appealed from, and that therefore the Board had no jurisdiction to reopen it under the facts of the instant case, and make the new award of June 6, 1938.

We first consider the third above stated contention. This contention involves the application of Sec. 12d, Art. 8306, R.C.S.1925, as amended in 1931, Vernon's Ann.Civ.St. art. 8306, § 12d. The amendment, however, does not affect the provisions of the 1925 statute so far as the matters here involved are concerned. This section of the Compensation Act, without quoting it in full here, authorizes the Industrial Accident Board to review and change its former award "at any time within the compensation period," upon a "showing [of] a change of condition, mistake or fraud * * *." It is clear to our minds that this language states three distinct grounds which will authorize such a review. The "change of condition" stated means a subsequent change of the physical condition of the employee from that which existed at the time the original award was made by the Board. Independence Indemnity Co. v. White, Tex.Com. App., 27 S.W.2d 529. While the employee alleged a change of condition as authorizing a review by the Board of its former award, this ground was not submitted to the jury as a fact issue, nor its submission requested. The only ground submitted as basis for the Board's review of its former award was that of "mistake." On this issue the jury found, upon sufficient evidence to sustain such finding, that appellee, the doctor who examined him, and the appellant, were all mistaken in the original presentation of his claim to the Board, as to the nature and extent of appellee's injuries.

Nor do we agree with appellant that, as used in the statute, the term "mistake" relates only to an element of fact in the issue of fraud. The language used in Estes v. Hartford Acc. & Ind. Co., Tex. Civ.App., 46 S.W.2d 413, 417, related to the issue of fraud, the only ground on which a compromise agreement, theretofore approved by the Board, was sought to be reopened and reviewed in that case. In any event, the holding in that case that the Board had authority to review and set aside, under proper showing, its former order approving a compromise settlement of a claim, has since been definitely overruled by the Supreme Court in Commercial Cas. Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081, 1082.

If the term "mistake" used in the statute relates only to mistake as an element of fraud, it would, in effect, be little less than surplusage. Fraud necessarily involves some element of mistake. If the perpetrator knowingly misleads his victim by misrepresentation, such victim is necessarily mistaken as to the true facts; otherwise no deceit would result. Or, if fraud result from innocent misrepresentation as to facts by either party, mistake as to the true facts necessarily results. In either event, mistake of one or the other party occurs. No limitation of the meaning of that term merely to the issue of fraud can therefore be attributed to the legislature.

On the other hand, it is clear, we think, that this term in the statute was intended to authorize a review by the Board of a mistake of fact as to the actual injuries received, whether made by the employee, the insurer, or the Board itself, irrespective of, or independent of, any issue of fraud. The purpose of the Compensation Act was to provide adequate compensation for injured employees, within the limits fixed by the Act, commensurate with the incapacity caused by the actual injuries received. And it was the manifest purpose of Sec. 12d to authorize the Board, in administering the Act, and to effectuate its purpose, to correct mistakes made without fault of any party, and in the light of the true facts, whether fraud on the part of anyone is involved or not. Such a case is here presented.

We come now to the question of what is the "compensation period" within the meaning of the statute. The question has never been determined by the Supreme Court so far as we have been able to find. Appellant relies, in the main, on Browner v. Texas Ind. Ins. Co., Tex.Civ.App., 17 S.W.2d 850, writ refused, to sustain its contention that the "compensation period," within which the Board is authorized to reopen and review its original award, is the period during which compensation is allowed in its first award.

The exact question here presented was decided against appellant's contention in a very careful and well considered opinion by Judge Leslie in Employers' Liability Assurance Corp. v. Best, Tex.Civ.App., 101 S.W.2d 891, writ dismissed. At first glance this case would appear to be in conflict with the Browner case; but a careful analysis clearly shows, we think, that it is not. While the Court of Civil Appeals in the Browner case in its original opinion did hold that the "compensation period" was referable to, and determined by, the period originally fixed by the Board as the period during which the injured employee was to be compensated for his particular injury; on motion for rehearing the court grounded its decision on the fact that the employee had failed in that case to show any "change of condition" (that being the ground on which he sought a review...