Hartford Accident & Indemnity Co. v. Moore

• Citation: 102 S.W.2d 441
• Decision Date: 13 February 1937
• Docket Number: No. 12390.,12390.
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. MOORE.
• Court: Court of Appeals of Texas

102 S.W.2d 441

HARTFORD ACCIDENT & INDEMNITY CO. v. MOORE.

No. 12390.

Court of Civil Appeals of Texas. Dallas.

February 13, 1937.

Rehearing Denied March 13, 1937.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Suit under the Workmen's Compensation Act by George Moore, to set aside an award of the Industrial Accident Board in favor of the Hartford Accident and Indemnity Company. From a judgment granting an award to claimant, defendant appeals.

Affirmed.

Eckford & McMahon, of Dallas, for appellant.

White & Yarborough, of Dallas, for appellee.

JONES, Chief Justice.

This is a workmen's compensation suit, in which George Moore, appellee, is the injured employee. Hartford Accident & Indemnity Company, appellant, is the compensation carrier, and Koon-McNatt Storage & Transfer Company is the employer.

In a trial in a district court of Dallas county, to set aside the award of the Industrial Accident Board, and to make an award to appellee, for 100 weeks from the date of his injury for alleged total incapacity, 100 weeks in which appellee alleged partial incapacity to the extent of 75 per cent., and 200 weeks in which appellee alleged partial incapacity to the extent of 50 per cent., a judgment was entered in favor of appellee in accordance with the respective disabilities alleged. From this judgment appellant has duly perfected an appeal, and the following are the necessary facts:

On October 9, 1935, while working in the scope of his employment, appellee received serious personal injuries. All of the preliminary steps, necessary to clothe the district court with jurisdiction, were taken by appellee, and no question is raised as to this jurisdiction. Appellee alleged that by reason of his injuries, he was totally incapacitated for a period of 100 weeks from the date of his injuries; that immediately following this period of total incapacity he would be partially incapacitated to the extent of 75 per cent., for a period of 100 consecutive weeks; that immediately following the expiration of this second period of 100 weeks he would be partially incapacitated to the extent of 50 per cent. for a period of 200 weeks.

The case was tried to a jury and, on the issues that are relevant to this appeal, after finding on special issues Nos. 1, 2, and 3 that appellee sustained personal injuries while working as an employee of Koon-McNatt Storage & Transfer Company, and that such injuries were received in the course of appellee's employment, the jury made the following findings on other special issues:

"No. 4. Do you find from a preponderance of the evidence that plaintiff, George Moore, sustained total incapacity as a natural result of said personal injuries, if any, received by him on or about October 9, 1935? Answer: Yes.

"No. 5. How many weeks of total incapacity, if any, do you find from a preponderance of the evidence that plaintiff, George Moore, suffered or will suffer as a natural result of such injuries, if any, sustained by him on or about October 9, 1935? Answer: 350 weeks.

"No. 6. Do you find from a preponderance of the evidence that George Moore has sustained, or will sustain any partial incapacity, as a natural result of said injuries, if any, received by him on or about October 9, 1935? Answer: Yes.

"No. 7. What do you find from a preponderance of the evidence to be the date of the beginning of said partial incapacity, if any? Answer: July 17, 1942.

"No. 8. How many weeks of partial incapacity, if any, do you find from a preponderance of the evidence that George Moore sustained, as a natural result of the personal injuries, if any, received by him on or about October 9th, 1935? Answer: 150 weeks.

"No. 9. What percentage of partial incapacity, if any, do you find from a preponderance of the evidence, that plaintiff, George Moore, suffered or will suffer, for the period, if any, of partial incapacity you have found in answer to the preceding issues? Answer: 75 per cent."

The jury also found, in response to special issue No. 15, that the average wage of appellee when at work was $3 per day. Appellee's regular working time was 6 days a week.

It will be noted that the jury's finding of 350 weeks of total incapacity is in excess of the total incapacity alleged by appellee, to the extent of 250 weeks. It will be noted further that the jury's finding of 150 weeks of partial incapacity to the extent of 75 per cent., to begin after the expiration of the 350 weeks of total incapacity, is in excess, by 100 weeks, of any incapacity alleged by appellee in his pleading, and is in excess of the maximum statutory allowance for recoverable incapacity by 100 weeks, the jury findings embracing a period of 500 weeks.

The trial court received the verdict and granted appellee's motion for judgment on the findings of the jury, and entered judgment for total incapacity for 100 successive weeks from October 9, 1935, the date of injury, at $10.38 per week; for 100 successive weeks immediately following this total incapacity, for a partial incapacity to the extent of 75 per cent. at $7.785 per week; and for the next succeeding 200 weeks, for a partial incapacity to the extent of 50 per cent. at $5.19 per week; and the court treated the remaining 100 weeks of incapacity, found by the jury, as a nullity. If any valid judgment could be rendered on this verdict, the judgment entered by the court is the only such judgment.

It is contended by appellant that, in view of appellee's pleading and the verdict of the jury, calling for an amount much larger than that pleaded, no judgment could be rendered, because, under said pleading, the verdict of the jury cannot be made the basis of any valid judgment.

It is contended by appellee that, as the findings of the jury that incapacity existed for 400 weeks, the total of each form of incapacity allowed by the judgment, the court could make said incapacity found by the jury conform to appellee's pleading, and ignore the excessive amount as to the total incapacity, and as to partial incapacity, and enter judgment for the incapacity alleged by appellee, without doing violence to appellant's rights, and without substituting the court's findings for those of the jury.

It becomes the task of this court to pass upon these respective contentions.

This is a case out of the ordinary, in that the findings of the jury in respect to the incapacity suffered by appellee by reason of the injuries he received on the occasion in question is in excess of the incapacity alleged in the petition, and such finding...