Commercial Standard Ins. Co. v. Lowrie

• Decision Date: 16 March 1932
• Docket Number: No. 8777.,8777.
• Citation: 49 S.W.2d 933
• Parties: COMMERCIAL STANDARD INS. CO. v. LOWRIE.
• Court: Texas Court of Appeals

49 S.W.2d 933

COMMERCIAL STANDARD INS. CO. v. LOWRIE.

No. 8777.

Court of Civil Appeals of Texas. San Antonio.

March 16, 1932.

Rehearing Granted April 13, 1932.

Rehearing Overruled May 11, 1932.

Appeal from District Court, Live Oak County; T. M. Cox, Judge.

Suit by W. L. Lowrie against the Commercial Standard Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Touchstone, Wight, Gormley & Price and W. P. Bondies, all of Dallas, for appellant.

Samuel Belden, Grover C. Morris, and Joe L. Hill, all of San Antonio, for appellee.

COBBS, J.

Appellee sued appellant in Live Oak county, alleging that about February 5, 1930, he was employed by the C. C. Moore Construction Company in the town of George West, Live Oak county, as a laborer at a regular wage of $17.50 per week; that on or about said date, in the course of his employment, plaintiff was severely and painfully and permanently injured in his back, spine, right side, and several other internal injuries by being knocked off a bridge by another employee. Appellee alleged that his employer, C. C. Moore Construction Company, was a subscriber under the terms and provisions of the Employer's Liability Act of the State of Texas, and had procured from appellant, Commercial Standard Insurance Company, an insurance policy, which was in full force and effect at the time of appellee's injury; and that in accordance with the terms of said policy and its provisions the appellant became bound and obligated to pay appellee such sums as might become due and payable as compensation and for medical and hospital expenses under the Employers' Liability Act of the State of Texas (Rev. St. 1925, arts. 8306-8309 as amended).

That for the purpose of defrauding and cheating appellee, the appellant induced appellee to go to Dallas, and while there obtained from him his signature to a compromise agreement, through its physician and other agents, on their representation to him that such instrument was a receipt for compensation then due appellee in the sum of $200.

Appellee, among other things, alleges:

"That the said instrument was drawn up by the defendant herein as being executed under the conditions herein set out and said instrument became inoperative and void for the further reason that the person procuring the said instrument was the physician representing the defendant who stated to plaintiff that he knew plaintiff's condition and that plaintiff was not seriously injured and that he, as a physician, could assure plaintiff that it was all right and proper for plaintiff to accept said $200.00. That said physician did not state to plaintiff that he was signing a release in full for all demands past and future and that the said physician on account of his persuasion and influence, misrepresented to plaintiff and induced plaintiff to sign said release which plaintiff would not have done except for the influence and misrepresentations of said physician and other agents of the defendant. That said instrument was drawn up by the defendant herein after being executed under the conditions above set out and presented to the Industrial Accident Board which called a hearing and entered an order approving said erroneous settlement and agreement on May 14, 1930.

"Plaintiff would show that the true condition of the plaintiff was not presented to the Industrial Accident Board but rather was misrepresented to said Board by reason of the facts. That the defendant knew and was informed that the plaintiff's injury as hereinbefore alleged was permanent and serious, but with the intent to cheat and defraud plaintiff, the defendant in an ex parte hearing obtained said award and approval and plaintiff was not seen or examined by the Board Doctors and plaintiff is certain that had the Board known the true facts of his condition, the compromise agreement would not have been approved.

"It is further alleged that plaintiff is in need for money, is in financial distress, which was known to the defendant and defendant took advantage of plaintiff's situation to make a hard bargain and thus wrongfully took from plaintiff that which he was justly and in good conscience entitled to as a result of his injuries hereinbefore set out. That thereafter in the month of January, 1931, the plaintiff was informed that the compromise settlement evidenced by the instrument heretofore mentioned and executed by the plaintiff, had been approved by the Industrial Accident Board of the State of Texas on the 14th day of May, 1930. That on the 20th day of January, 1931, through his attorneys, plaintiff filed with the Industrial Accident Board, an application to review the compromise agreement for the reason heretofore set out and to set the case for rehearing on its merits and that the plaintiff is entitled to weekly compensation for the period of 401 weeks for the injuries sustained under the provisions of the Employers' Liability Act. That thereafter, on the 24th day of January, 1931, the Board entered a final judgment in this cause denying the plaintiff's application to review the compromise settlement agreement and to allow the plaintiff a hearing of his claim on its merits.

"That afterwards, the plaintiff, to-wit: on the 28th day of January, 1931, after the Industrial Accident Board had entered a final judgment denying this plaintiff relief, plaintiff gave notice of his dissatisfaction with the order denying him a re-hearing by said board, and now appeals and asks for a trial de novo on its merits, and that he be allowed compensation as provided by law and he further alleges that this case is now being appealed for trial on its merits as provided by law. He says that he was injured as hereinabove set out while in the course of his employment at George West, Live Oak County, Texas. He further alleges that he was a strong healthy man prior to the accident and capable of carrying on his usual occupation as a laborer. That plaintiff has lost his ability to labor and earn a living by reason of his injuries as pleaded, and that he is entitled to receive and recover of and from the defendant compensation at the rate of $17.50 per week for a period of 401 weeks which is $7,017.50; that he is a poor man and this sum should be paid in a lump sum or increased compensation as provided for in the Employers' Liability Act."

To this pleading the appellant filed a plea of privilege and a sufficient answer.

The plea of privilege sought to transfer the cause of action to Dallas, the place where the alleged fraud was committed, which plea and all exceptions to the pleading were overruled.

While it is true the case may have been tried where the fraud was alleged to have been committed, still it was properly brought in Live Oak county, where the injury occurred. Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084; Savage v. H. C. Burks & Co. (Tex. Civ. App.) 270 S. W. 244; San Jacinto Life Ins. Co. v. Boyd (Tex. Civ. App.) 214 S. W. 482; Lumbermen's Reciprocal Ass'n v. Day (Tex. Com. App.) 17 S.W.(2d) 1043, 1045; Day v. Lumbermen's Reciprocal Ass'n (Tex. Civ. App.) 8 S.W.(2d) 709; Todd v. Southern Casualty Co. (Tex. Civ. App.) 18 S.W.(2d) 695; Yates v. State (Tex. Civ. App.) 3 S.W.(2d) 114, 117.

The insurance company was a foreign corporation and suit was properly brought in Live Oak county. Article 1995, R. S.; San Jacinto Life Ins. Co. v. Boyd, supra; Yates v. State, supra. We think, under the law, that the suit was properly brought and tried in Live Oak county.

The appellant filed no motion for a new trial and cannot now be heard to complain of the action of the court in overruling the motion.

We think the evidence was sufficient to show that when appellant induced appellee to go to Dallas he was sick and had no means of making a livelihood; that he was permanently injured and would never recover so as to be able to do manual labor; that the statements made by the agents and representatives of appellant were in law false and fraudulent; and that the settlement was procured by fraud. The trial court found the facts against appellant and that the settlement was procured by fraud. International & G. N. R. Co. v. Shuford, 36 Tex. Civ. App. 251, 81 S. W. 1189, 1190; Johnson v. Gulf, C. & S. F. R. Co., 36 Tex. Civ. App. 487, 81 S. W. 1197.

The evidence clearly established a permanent injury, and that the settlement was made through fraud and imposition perpetrated upon appellee, who in fact did not know that he was signing a full release of his claim.

The appellee suffered pain and anguish and spent money for medical treatment and hospital fees. All these facts were found by the trial court in favor of appellee. Appellee testified that he would not have signed the paper if he had known that it was a full release. The testimony upon the point is very full and complete.

The assignments have all been read and considered. They are without merit and are overruled.

There was ample evidence as to the nature and result of the injury to support the court's findings, and believing the case fairly tried and substantial justice done, the judgment is affirmed.

On Motion for Rehearing.

SMITH, J.

Appellee sustained compensable injuries as an employee under the terms of the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309 as amended). Subsequently he settled his claim against appellant, the insurer, for the sum of $200 cash, which settlement was submitted to and approved by the Industrial Accident Board as fair and just.

Subsequently appellee filed a claim with the board for compensation, but the board declined to hear it, upon the ground that it had lost jurisdiction thereof.

Appellee then filed this suit in Live Oak county, in which he received the injuries complained of. He alleged that he was induced to make the compromise by the fraud of appellant's agents committed in Dallas county, prayed that that agreement be set aside, and that he have judgment for compensation as under the...