Hartford Accident & Indemnity Co. v. Herriage

• Decision Date: 26 February 1940
• Docket Number: No. 5121.,5121.
• Citation: 139 S.W.2d 873
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. HERRIAGE.
• Court: Texas Court of Appeals

Page 873

139 S.W.2d 873

HARTFORD ACCIDENT & INDEMNITY CO. v. HERRIAGE.

No. 5121.

Court of Civil Appeals of Texas. Amarillo.

February 26, 1940.

Appeal from District Court, Lamb County; C. D. Russell, Judge.

Suit under the Workmen's Compensation Act by T. H. Herriage against the Hartford Accident & Indemnity Company to accelerate payments under an award of the Industrial Accident Board. From an adverse judgment, defendant appeals.

Affirmed.

Peyton B. Randolph, of Plainview, and Cantey, Hanger, McMahon, McKnight & Johnson and James C. Wilson, Jr., all of Fort Worth, for appellant.

Webb & Webb, of Sherman, for appellee.

STOKES, Justice.

This suit was filed by appellee, T. H. Herriage, against appellant, Hartford Accident & Indemnity Company, to recover compensation under the Workmen's Compensation Law of this State. Art. 8306 et seq., R.C.S. 1925. The record shows that appellee was employed by West Texas Cotton Oil Company at Littlefield, in Lamb County, and appellant was the compensation insurance carrier. No question is raised concerning the injuries complained of by appellee nor his right to recover some amount therefor. The case was submitted to a jury and upon their answers to the special issues submitted to them, judgment was rendered by the trial court in favor of appellee for an amount aggregating $354.

In addition to allegations concerning his employment, injury and the liability of appellant under its policy of insurance, appellee alleged that he was a poor man and the head of a family; that he had no income except through his labor, and no property or home; that he had agreed with his attorneys to pay them one-third of the amount which he may recover; that he was in debt, and that his compensation of 60% of his average weekly wage would be so small, especially after deducting the amount which he had agreed to pay his attorneys, that it would be insufficient to support him and his family. He alleged that by virtue of his necessitous circumstances and the inadequacy of the payments to meet his necessities, he was entitled to have his weekly payments increased over and above the amount provided by law in ordinary cases and the number of weeks during which his compensation should be paid correspondingly decreased as provided by Sec. 15a of Art. 8306, R.C.S.1925.

Under special issues Nos. 49, 50 and 51 the court submitted to the jury the questions of whether or not the weekly compensation, if any, to be paid appellee was inadequate to meet his necessities; whether or not the weekly payments should be increased, and the amount of such increase, if any. In answer to these special issues the jury found that the amount of the weekly payments would be inadequate; that they should be increased and the amount of such increase should be $5 per week.

Appellant urged special exceptions to the allegations of appellee concerning his necessitous circumstances and the matter of accelerated installments of his compensation. It also objected to the testimony concerning the same and to the special issues submitted by the court in reference thereto. These exceptions and objections were overruled by the court and the rulings of the court on these matters constitute the subject matter of this appeal.

The controlling question in the case is whether or not, under the provisions of Sec. 15a, Art. 8306, the court, upon a trial de novo of a compensation case, is authorized to determine the question of accelerated weekly payments of compensation. The section of the statute provides, substantially, that in cases where the compensation is payable weekly and it appears to the Industrial Accident Board that the "amount of compensation being paid" is inadequate to meet the necessities of the employee or beneficiary, the board shall have power to increase the same by correspondingly decreasing the number of weeks for which the same is to be paid. It is provided, however, that in no case shall the amount to which the payments are increased exceed the amount of the average weekly wages upon which the compensation is based. Appellant contends that the statute, Sec. 15a of Art. 8306, contemplates only a case wherein the compensation has already been fixed either by the board or by the court upon a trial de novo and that the court does not have authority to accelerate the weekly payments of compensation nor even to consider that matter upon an original trial of a compensation case. It contends further that the Industrial Accident Board and not the court has jurisdiction or authority to pass upon the matter of accelerating the weekly payments and that, therefore, the court erred in overruling its special exceptions to appellee's allegations concerning the matter of accelerated payments and in overruling its objections to appellee's testimony concerning the same and its objections to the special issues in which the question was submitted to the jury.

The section of the article mentioned provides that where it appears to the board that the amount of compensation "being paid" is inadequate to meet the necessities of the employee, the board shall have the power to increase the amount of compensation by correspondingly decreasing the number of weeks for which the same is to be paid. In view of the phrase "amount of compensation being paid", if we consider the provision of that section alone, without reference to other provisions of the act, and construe literally its phraseology, the conclusion contended for by appellant would probably be the logical one. But it is the policy of the law, and has many times been so expressed by the courts, that the compensation law must be construed as a whole, and that it should receive a broad and liberal construction so as to effectuate its intent and purpose. Vestal v. Texas Employers' Ins. Co., Tex.Com. App., ...