Day v. Lumbermen's Reciprocal Ass'n

• Decision Date: 23 June 1928
• Docket Number: (No. 10304.)
• Citation: 8 S.W.2d 709
• Parties: DAY v. LUMBERMEN'S RECIPROCAL ASS'N.
• Court: Texas Court of Appeals

8 S.W.2d 709

DAY v. LUMBERMEN'S RECIPROCAL ASS'N.

(No. 10304.)

Court of Civil Appeals of Texas. Dallas.

June 23, 1928.

Rehearing Denied July 21, 1928.

Appeal from District Court, Dallas County; P. O. Beard, Judge.

Suit by James Day against the Lumbermen's Reciprocal Association. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

White & Yarborough, of Dallas, for appellant.

Touchstone, Wight, Gormley & Price, of Dallas, for appellee.

JONES, C. J.

In a suit by James Day, appellant, against the Lumbermen's Reciprocal Association, appellee, to set aside an award of the Industrial Accident Board, judgment was rendered in favor of appellee on peremptory instruction from the court, and appellant prosecutes an appeal.

The suit is based on the following facts: Appellant received an injury while in the course of his employment with the Olive & Myers Manufacturing Company, whose plant is located in the city of Dallas. The injury occurred on April 19, 1926, while appellant was engaged in the work of his employer in removing varnish from a piece of furniture, and, to assist in such work, he was using a fluid that contained a large percentage of one of the acids. Some of this fluid accidentally flew into his left eye, with the result that the eye became very much inflamed and he was under the treatment of a physician, and later an eye specialist, for a considerable period of time. The final result was that the injured eye had to be removed, and his other eye became involved, by reason of the injury, to such an extent that its vision is now very greatly impaired and may be totally lost. The Olive & Myers Manufacturing Company was a "subscriber" under the Workmen's Compensation Act (Vernon's Ann. Civ. St. 1925, arts. 8306-8309), with appellee carrying its compensation insurance. Before the removal of the left eye, and before the present impairment of the vision of the right eye existed, and at a time when appellant was suffering very much from the injured eye, a compromise adjustment of appellant's claim against appellee, for compensation insurance, was entered into between appellee's adjuster and appellant. It was first agreed that the sum of $500 should be paid by appellee in full settlement of this claim, but, before this amount was accepted by appellant, it was increased by $100. While this adjustment was pending, appellant wrote several letters to the Industrial Accident Board, describing his injury, and stating that he had been warned by the physician that the inflamed eye might have to be removed, and that the vision of the other eye might be affected. At the time of this adjustment, there was no vision in the injured eye. The adjustment was submitted, as required by law, to the Industrial Accident Board, together with the reason for making the compromise agreement. The reason given conformed to the statutory condition that will authorize the board to approve a compromise of such a claim. The Industrial Accident Board approved the adjustment, and entered its order accordingly and appellant received the $600 and executed a release. This final approval was in August, 1926.

At the time of the injury, appellant's average weekly wage was $31.30, and, under the Workmen's Compensation Act, he was entitled for the permanent loss of the sight of one eye, to 60 per cent. of his average weekly wage during 100 weeks. The compromise agreement entered into recited that appellant sustained the...