Heibel v. Bermann, 14896
| Decision Date | 27 October 1966 |
| Docket Number | No. 14896,14896 |
| Citation | 407 S.W.2d 945 |
| Parties | Shelby Jean HEIBEL et vir, Appellants, v. Camille BERMANN, Appellee. . Houston |
| Court | Texas Court of Appeals |
Robert J. Barr, Houston, for appellants.
Vinson, Elkins, Weems & Searls, John N. Touchstone, Houston, for appellee.
This is an appeal from a judgment, rendered on appellee's motion for summary judgment, dismissing appellants' suit against appellee. The suit dismissed was one against appellee to recover damages at common law, both actual and punitive, for injuries allegedly resulting from an intentional blow struck by appellee that resulted in injury to Mrs. Heibel.
On March 9, 1963, Mrs. Heibel was an employee of Maxim's, Inc. in Houston. Appellee was a fellow employee. On that date, according to a petition filed by Mrs. Heibel and her husband, she, while acting in the course and scope of her employment, was struck and received a sharp blow over her right kidney area. As a result of the injuries received, she alleged she was totally and permanently disabled and asked compensation for 401 weeks, together with medical expense, from Aetna Casualty and Surety Co., the workmen's compensation carrier for Maxim's, Inc. The suit represented an appeal from an award of the Industrial Accident Board.
On January 31, 1966, an agreed final judgment of compromise and settlement was rendered awarding Mrs. Heibel $3,800.00 against Aetna . The judgment, signed by appellants here, their attorney, the attorneys for Aetna and the judge, recited that the judgment had been fully satisfied and it was adjudged that Aetna and the employer were relieved and discharged from all liability for damages, disability, incapacity, etc. arising or growing out of the accident and accidental injuries to Mrs. Heibel which were the basis of the suit. Appellants and their counsel acknowledged in writing the receipt of $3,800.00 in full payment, satisfaction and discharge of the accident of March 9, 1963, and the judgment rendered. The receipt contained an agreement that appellants would pay all medical expense.
On February 11, 1966, appellants filed suit against appellee individually alleging that on March 9, 1963, appellee intentionally struck Mrs. Heibel on the kidney causing severe injuries to her. They sought to recover actual and punitive damages. As presented here appellants contend that though Mrs. Heibel first claimed and received workmen's compensation from Aetna, since the act of the fellow employee that caused her injuries and disability was intentional, she also has a common law action for damages, because such action is preserved to her by Article I, Sec. 13, Constitution of Texas, Vernon's Ann.St.
Appellee by his answer, both by way of exception and in bar, pled that Mrs. Heibel had claimed and accepted compensation under the workmen's compensation insurance policy covering Maxim's, Inc. and this, by virtue of Article 8306, Sec. 3, Vernon's Ann.Tex.Civ.St., barred recovery. Too, as a bar to recovery appellee pled the period of limitation prescribed by Article 5526, V.A.T.S.
Appellee's motion for summary judgment pled also as a bar Section 5 of Article 8306. To the motion he attached a certified copy of appellants' petition seeking recovery from Aetna of workmen's compensation, the compromise judgment in that case and the receipt acknowledging payment of the compensation. An...
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Massey v. Armco Steel Co., C2927
...torts. The filing of a claim for benefits waives an employee's right to proceed outside the Act. Grove Manufacturing, supra; Heibel v. Bermann, 407 S.W.2d 945 (Tex.Civ.App.-Houston 1966, no writ). An employee must make a choice between his statutory rights and those provided through the In ......
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Ferguson v. Hospital Corp. Intern., Ltd.
...The Court held that no election of remedies was made until a final judgment was entered on his compensation claim. HCI cites Heibel v. Bermann, 407 S.W.2d 945 (Tex.Civ.App.--Houston [1st Dist.] 1966, no writ), for the proposition that the appellees did elect a remedy. However, that case is ......
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Little v. Delta Steel, Inc.
...... attempt to recover actual damages on the ground that Gulf States Utilities Company was not a subscriber under the Act.”); Heibel v. Bermann, 407 S.W.2d 945, 946 (Tex.Civ.App.-Houston 1966, no writ) (“We are of the view that appellants, by proceeding to claim and collect benefits provide......
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Little v. Delta Steel, Inc.
.... . attempt to recover actual damages on the ground that Gulf States Utilities Company was not a subscriber under the Act."); Heibel v. Bermann, 407 S.W.2d 945, 946 (Tex. Civ. App.—Houston 1966, no writ) ("We are of the view that appellants, by proceeding to claim and collect benefits provi......