Globe Indemnity Co. v. McClurg

• Decision Date: 08 April 1931
• Docket Number: No. 2072.,2072.
• Citation: Globe Indemnity Co. v. McClurg, 38 S.W.2d 125 (Tex. App. 1931)
• Parties: GLOBE INDEMNITY CO. v. McCLURG.
• Court: Texas Court of Appeals

Page 125

38 S.W.2d 125

GLOBE INDEMNITY CO. v.McCLURG.

No. 2072.

Court of Civil Appeals of Texas. Beaumont.

April 8, 1931.

Rehearing Granted April 22, 1931.

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

Action by A. T. McClurg against the Globe Indemnity Company to set aside an award of the Industrial Accident Board.From the judgment, defendant appeals.

Reversed and remanded.

Baker, Botts, Andrews & Wharton, of Houston, for appellant.

F. G. Vaughn, of Beaumont, for appellee.

WALKER, J.

This suit originated as an appeal under the Workmen's Compensation Act by appellee against an adverse award of the Industrial Accident Board, wherein he was claimant and appellant was insurer.Appellee alleged that he was injured on October 6, 1929, while in the course of his employment with Republic Production Company, and that appellant was the insurer, and that as a result of his injury he was totally and permanently disabled.His prayer was for compensation for 401 weeks at $18.75 per week and for a lump sum settlement.Appellant answered only by general and special demurrers and general denial.

Answering question No. 1, the jury found that appellee suffered total incapacity as the result of his injury, and by question No. 2 that the total incapacity was permanent and by special issue requested by appellee that he was not entitled to a lump sum settlement.On the verdict judgment was entered reciting that appellee was entitled to recover of and from appellant"the sum of $18.75 per week for a period of 401 weeks to commence on the 6th day of October, 1929, and to continue therefrom for a period of 401 weeks from said date, less 16 weeks compensation heretofore paid the plaintiff by the defendant."The decree was as follows: "It is therefore, ordered, adjudged and decreed by the court that the plaintiff herein do have and recover of and from the Globe Indemnity Company the sum of $18.75 per week, payable weekly, beginning on the 6th day of October, 1929, and continuing for each and every week thereafter, and during each and every week thereafter from said date."

By its first and second propositionsappellant insists that the court erred in overruling its general demurrer to appellee's petition and in refusing to instruct a verdict in its favor on the ground that he failed to allege that it or his employer had notice of his injury within 30 days after the injury was received.These propositions are overruled.Appellee alleged that appellant paid "some compensation" and the proof was that appellant paid appellee 16 weeks' compensation, as recited by the judgment, and for which it was allowed credit.Appellee further alleged a liability against appellant for total permanent disability and prayed for judgment for total permanent disability for the statutory period of 401 weeks.We agree with appellant that without an allegation that it or the employer had notice of the injury within 30 days after the injury was received or without allegations of an excuse for the failure to give the notice, or without allegations of fact from which the conclusion could be drawn as a general intendment, the petition was subject to the general demurrer.Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084.However, though there was no affirmative allegation of 30 days' notice nor of an excuse for the failure to give the notice, it is our conclusion that the allegation that appellant paid "some compensation" made the petition good as against the general demurrer.We say this because appellant could not have paid "some compensation" without notice of the injury, and from this allegation it is a reasonable intendment that appellant paid the compensation because it was liable therefor, and, since liability did not exist without 30 days' notice or an excuse for the failure to give the notice, a reasonable intendment arises from the allegations of the petition that the notice was given within 30 days.Gulf Refining Co. v. Bonin(Tex. Civ. App.)242 S. W. 776.On the issue of proof, this question was directly before this court in Texas Employers' Ins. Ass'n v. Varner, 20 S.W.(2d) 334, 336, where we said: "Appellant's fourth proposition complains that there was no proof by appellee of notice to his employer or the association of his injury within 30 days after receiving same, and that allegation and proof of such notice was essential to give jurisdiction to the court to hear and determine the matter.Article 8307, § 4a, provides that no proceeding for compensation for injury under the Workmen's Compensation Act shall be maintained unless notice of the injury shall have been given to the association or the subscriber within 30 days after the happening of the injury.Appellee's petition alleges that he gave notice of his injury to his employer, Roy Jones, within 30 days after receiving his injury.He testified, and it is not disputed, that appellant paid him $37 as compensation.We think this sufficiently shows notice."

If proof that compensation was paid constitutes proof of notice within 30 days, it must be said that the allegation of the payment of "some compensation" would make the petition good as against a general demurrer.

By propositions 3 to 6, inclusive, complaint is made that the court erred in overruling the special exceptions urged against appellee's allegation of average weekly wage, that he failed to establish by competent proof an average weekly wage, and that error was committed in receiving certain evidence on this issue.Appellee pleaded his average weekly wage as follows: "Plaintiff represents unto the court that he has been employed by the Republic Production Company for a period of about three months, working seven days per week and earning the sum of $4.75 per day, which was the wage paid to other employees in the same kind of employment who had been in said engagement for a period of more than one year, and that his actual weekly wage was $31.25 per week.That his annual wage as defined by said Act was $1,675.00 and that on account of his total disability he is entitled, under the provision of said Act, to sixty per cent. of said wage, or $18.75 per week for a period of 401 weeks from the date of said injury."

Under its special exception, appellant correctly contends that it was appellee's duty to plead his average weekly wage, first, under subsection 1 of section 1 of article 8309, R. S. 1925, if not able to plead a case under that section, then under subsection 2, and, if not able to plead a case under that section, then under subsection 3.American Employers' Ins. Co. v. Singleton(Tex. Com. App.)24 S.W.(2d) 26.The petition was subject to these exceptions, because appellee failed to allege a case under subsection 1 and pleaded no facts showing that he could not prove his average weekly wage under that section.Also, it should be...