Georgia Casualty Co. v. Ginn

Decision Date15 April 1925
Docket Number(No. 7341.)
CitationGeorgia Casualty Co. v. Ginn, 272 S.W. 601 (Tex. App. 1925)
PartiesGEORGIA CASUALTY CO v. GINN.
CourtTexas Court of Appeals

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by the Georgia Casualty Company to set aside award of compensation by Industrial Accident Board to Edward Ginn, employé.Judgment for employé, and plaintiff appeals.Affirmed.

H. T. Cooper, of Fort Worth, and Thomas, Frank, Milam & Touchstone, of Dallas, for appellant.

Slay, Simon & Smith, of Fort Worth, and Lacy & Bramlette, of Longview, for appellee.

COBBS, J.

Appellant instituted this suit against appellee to set aside an award by the Industrial Accident Board, made in favor of appellee, who was alleged to have been injured while in the employ of L. J. Hawkins, who carried on said date a policy of compensation insurance with appellant.The award of the Board provided for a continuing award not to exceed 401 weeks.Appellant asked that this award be set aside, and that Edward Ginn take nothing against it.In his answer, appellee averred he was injured on July 14, 1921, while engaged in his work for L. J. Hawkins, and that his weekly wage was $24.51, which entitled him to compensation in the sum of $14.71 per week; that he was totally and permanently disabled as a result of his injuries, and therefore was entitled to recover compensation for 401 weeks.He prayed that a judgment be awarded him in a lump sum, and alleged that hardship and injustice would result if this were not done, because he would be unable to support himself and family on the weekly payments.

The case was submitted to the jury upon special issues, which were answered in favor of appellee, and the court rendered judgment accordingly.The judgment was for $1,409.95 against Georgia Casualty Company in favor of Ginn, as compensation for 90 weeks due at the time of the trial, and for 287 weeks' compensation to be paid in the future, the first payment to be made September 28, 1923.The judgment recited that the plaintiff, Georgia Casualty Company, had already paid to the defendantEdward Ginn compensation for 23 weeks.

Appellant presents four contentions: (a) That the evidence did not show appellant was carrying compensation insurance of the appellee's employer at the time of the injury; (b) that the term "total incapacity" contained in the court's charge was erroneous; (c) that the court erred in submitting to the jury an issue in asking if the total incapacity of the complainant would continue as long as 290 weeks; and (d) that the court erred in submitting the issue in the form it is submitted, because it is vague and indefinite, and impossible to tell from the jury's answer whether it meant to find that the claimant's incapacity was for 290 weeks from the date of the injury or 290 weeks from the date of the trial.

Appellant's first proposition is that a judgment based upon hearsay and incompetent evidence is defective and cannot be sustained.That may in a sense be true when properly raised in a case of that kind, but it has no significance here, and is too general to be considered.

The second proposition is so general as to state no concrete proposition of law.Of course appellee was required to prove his case.But if in making the proof the policy was not present, it was incumbent upon appellee to account for its absence or its loss, and then prove its existence or loss by secondary evidence.The evidence abundantly shows its existence and delivery and loss, and its contents, and all necessary steps were taken to account for its loss.Appellant filed no sworn plea denying its execution or existence.Hawkins, the insured, testified he destroyed it.Its contents were proven.It was shown to be a policy of workmen's compensation or industrial accident insurance.

The liability of the insurer under one of these policies, as well as the provisions thereof, is fixed by law.Appellee received blanks, filled them out, and, after he made a statement to appellant, it commenced paying appellee fortnightly payments of compensation insurance, and continued these payments from the month of July up to December, 1921, voluntarily, before appellee resorted to the Industrial Accident Board to compel payments.

Under the facts in this case, showing the conduct of appellant in making these partial payments and its acquiescence, it does not lie in the mouth of appellant to now deny the issuance of this policy.It was in possession of its own books and records relating thereto, and, if it had not issued such a policy, it was in a position to make the proof, and its silence or failure to produce the evidence will be construed most strongly against appellant.Railway v. Day, 104 Tex. 237, 136 S. W. 435, 34 L. R. A. (N. S.) 111;Bank v. Burrus Mill Co.(Tex. Civ. App.)207 S. W. 400.We have had occasion to follow that rule in two cases just decided by us at this term, to wit, Fort Worth & Denver City Ry. Co. v. Mrs. J. D. Stovall, Adm'x, 272 S. W. 594;andG., H. & S. A. Ry. Co. and H. & T. C. R. Co. v. W. J. Neville and S. M. Brightwell, 272 S. W. 597.We think the existence, loss, and contents of the alleged policy were properly accounted for and proven.Millers' Indemnity Underwriters v. Boudreaux(Tex. Civ. App.)245 S. W. 1025;Id.(Tex. Com. App.)261 S. W. 137;U. S. F. & G. Co. v. Summers(Tex. Civ. App.)262 S. W. 247.

Appellant complains that the court erred...

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