Hartford Accident & Indemnity Co. v. Choate
| Decision Date | 08 January 1936 |
| Docket Number | No. 1583-6438.,1583-6438. |
| Citation | 89 S.W.2d 205 |
| Parties | HARTFORD ACCIDENT & INDEMNITY CO. v. CHOATE. |
| Court | Texas Supreme Court |
This is a case under the Workmen's Compensation Act (Rev.St. 1925, art. 8306 et seq., as amended), W. M. Choate having filed his petition in the district court of Stephens county, on February 9, 1931, for the purpose of setting aside an award of the Industrial Accident Board theretofore rendered.
In his original petition, Choate alleged that on August 31, 1930, he was employed as a common laborer by the Lone Star Gas Company at a wage of $4 per day; that he was working in a pit and one of the employees struck a pipe line with a pick while said pipe line was emitting gas and caused a spark, which resulted in a fire in which he sustained severe burns, among others, those resulting in the loss of his left eye. He alleged that the Hartford Accident & Indemnity Company carried a policy of workmen's compensation insurance on his employer and sued it for compensation for 100 weeks at the rate of $13.85 per week, being the number of weeks to which he was entitled for the specific loss of one eye.
The usual allegations as to notice and the filing of his claim with the Industrial Accident Board appeared in the petition.
On September 30, 1931, the day the case went to trial, Choate filed his first amended original petition, wherein, for the first time, he alleged injury in and about his throat, by reason of which he claimed to have sustained, in addition to the loss of his left eye, 50 per cent. permanent incapacity, to his further damage in the sum of $3,000; he also sought compensation in a lump sum, the recovery prayed for amounting to $4,285.
The company, immediately, in answer to said amended petition, filed a plea to the jurisdiction of the court as to those matters set forth other than the specific loss of the left eye, because that was the only injury for which compensation was sought in the claim filed with and acted on by the Industrial Accident Board, and that was the order complained of and sought to be set aside in his original petition in the district court; that no claim was ever filed with or acted on by said board as to said other and additional injuries to the throat, face, neck, and ears, and therefore the court did not have power or jurisdiction to determine any claim for injuries not theretofore made before the Industrial Accident Board. The company's answer also contained general and special exceptions, general denial, and it was specially pleaded that the blindness of the left eye was not the result of the accident described by the plaintiff, Choate, but was due to its diseased condition, and the gas burns described by him did not in any wise contribute to such blindness.
It was further averred in said amended answer that from and after August 31, 1930, plaintiff was incapacitated for four weeks and four days, after which he fully recovered; that plaintiff accepted compensation for 4 weeks and declined to accept compensation for the 4 days which the company tendered and offered to pay.
The trial court overruled the general and all special exceptions and temporarily overruled the plea to the jurisdiction.
The case was then tried before a jury who, in answer to special issues submitted, found that the plaintiff sustained an injury while in the course of his employment, on August 31, 1930, but that such injury did not result in the loss of sight of his left eye; that he sustained an injury in and about his throat at said time resulting in a permanent partial incapacity of 35 per cent.; that his average weekly wage was $25, and manifest hardship would result to the plaintiff if the company was not required to pay his compensation in a lump sum.
Both parties filed motion for judgment —that of the plaintiff was overruled and that of the company was sustained, the basis for the judgment as shown from its recitations being as follows:
"Upon a reconsideration of the plea to the jurisdiction filed by defendant herein, the Court is of the opinion and so finds that plaintiff W. M. Choate, filed his claim with the Industrial Accident Board of the State of Texas on the 17th day of October, 1930, and that in said claim he sought compensation only for the specific injury of the loss of his left eye; that on February 9, 1931, plaintiff filed in this Court this suit to set aside the award of the Industrial Accident Board, made...
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