Commercial Standard Ins. Co. v. Moore

• Decision Date: 21 November 1945
• Docket Number: No. A-688.,A-688.
• Citation: 190 S.W.2d 811
• Parties: COMMERCIAL STANDARD INS. CO. v. MOORE.
• Court: Texas Supreme Court

Page 811

190 S.W.2d 811

COMMERCIAL STANDARD INS. CO. v. MOORE.

No. A-688.

Supreme Court of Texas.

November 21, 1945.

Rehearing Denied December 29, 1945.

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

Suit by the Commercial Standard Insurance Company to set aside an award of compensation by the Industrial Accident Board to George W. Moore, who filed a cross-petition for permanent total disability compensation. Judgment for petitioner, and to review a judgment of the Court of Civil Appeals, 188 S.W.2d 793, reversing the trial court's judgment and remanding the cause, petitioner brings error.

Judgment of Court of Civil Appeals reversed, and judgment of the trial court affirmed.

Underwood, Johnson, Dooley & Wilson, of Amarillo, for petitioner.

K. H. Dally, of Borger, and Norman Coffee, of Stinnett, for respondent.

SHARP, Justice.

Commercial Standard Insurance Company filed this suit to set aside an award of the Industrial Accident Board in favor of George W. Moore. In the trial court Moore filed a cross petition alleging his cause of action, and the trial court designated Moore as plaintiff and the Commercial Standard Insurance Company as defendant. The case was submitted to the jury upon special issues, and based upon the anwers of the jury to such special issues the trial court entered judgment in favor of the Commercial Standard Insurance Company. Moore appealed to the Court of Civil Appeals, where the judgment of the trial court was reversed and the cause remanded. 188 S.W.2d 793, 794.

The writ of error in this case was granted on the contention made by petitioner as follows: "The evidence heard by the trial court clearly warranted its conclusion that the jury agreed that special issue 9 should be answered, as it was, by the word `No,' and that any error in the answer resulted from misunderstanding of the issue and not from a clerical error in incorrectly transcribing the answer agreed upon; whether a new trial should be granted therefore lay within the sound discretion of the trial court; and, the trial court having exercised that discretion by denying a new trial, the Court of Civil Appeals materially erred in reversing the judgment of the trial court upon the claim of a unanimous mistake of a clerical nature."

Article 8306, Section 12b, of the Workmen's Compensation Law, Vernon's Annotated Civil Statutes, reads in part as follows:

"Sec. 12b. In all claims for hernia resulting from injury sustained in the course of employment, it must be definitely proven to the satisfaction of the board:

"1. That there was an injury resulting in hernia.

"2. That the hernia appeared suddenly and immediately following the injury.

"3. That the hernia did not exist in any degree prior to the injury for which compensation is claimed.

"4. That the injury was accompanied by pain."

Moore alleged that he sustained a hernia on July 13, 1943, while in the course of his employment, and that it resulted in his permanent and total disability. The Commercial Standard Insurance Company denied his allegations. The Court of Civil Appeals in its opinion said: "The case is before this court on one point of error only to the effect that the trial court should have granted appellant a new trial, and it erred in `overruling the plaintiff's motion for a new trial, since the answer of the jury to special issue No. 9 did not reflect the finding of the jury, but was in the nature of an unanimous clerical error.'"

Many issues were submitted to the jury and were answered by them. The trial court without any objection submitted special issue No. 9 in the following language: "Do you find from a preponderance of the evidence, if any, that said hernia, if any, on the left side of said plaintiff, George W. Moore, did not exist in any degree before the accident, if any, on the 13th day of July, 1943?" To which the jury answered "No."

Based upon the answer of the jury to such issue, the Commercial Standard Insurance Company requested that judgment be entered in its favor; which was done by the trial court. Afterwards Moore filed a motion for rehearing, and contended that the answer of the jury to special issue No. 9 was a unanimous clerical error on the part of the jury. Certain jurors testified on the motion for new trial, and the trial court held, after hearing the evidence, that the allegations...