Herzing v. Texas Employers' Ins. Ass'n

• Decision Date: 05 June 1929
• Docket Number: (No. 1271-5311.)
• Citation: 17 S.W.2d 1046
• Parties: HERZING v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Supreme Court

Page 1046

17 S.W.2d 1046

HERZING v. TEXAS EMPLOYERS' INS. ASS'N.

(No. 1271-5311.)

Commission of Appeals of Texas, Section A.

June 5, 1929.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Proceeding under the Workmen's Compensation Act by Alice Herzing, claimant, opposed by the Texas Employers' Insurance Association, insurer. A judgment of the district court awarding claimant compensation in the form of a lump sum was reformed and affirmed by the Court of Civil Appeals , and both parties bring error. Judgment of Court of Civil Appeals reversed, and that of the district court affirmed.

Jones & Lyles, of Del Rio, for plaintiff in error.

Eskridge & Williams, of San Antonio, for defendant in error.

NICKELS, J.

A judgment in favor of Miss Herzing for "compensation" as for total permanent disability and in a "lump sum" (under the Workmen's Compensation Law) was reformed in a particular and affirmed by the Court of Civil Appeals. 9 S.W.(2d) 457. Writ of error was allowed each party on application presenting questions to be noticed.

1. In the statute (article 8306, Rev. St. 1925, §§ 15 and 15a) it is provided.

"In special cases where * * * manifest hardship and injustice would otherwise result," the insurer may be compelled to "redeem * * * liability by payment of a lump sum as may be determined." Section 15.

"In any case where compensation is payable weekly at a definite sum and for a definite period, and it appears * * * that the amount of compensation being paid is inadequate to meet the necessities of the employé or beneficiary" the "amount of compensation" may be increased by "correspondingly decreasing the number of weeks for which the same is to be paid" in which case there shall be allowed "discount for present payment at legal rate of interest," i. e., six per centum per annum. Section 15a.

In respect to "lump sum" judgments in "special cases" made in authority of section 15, "the statute contemplated that the court fix the present value of the weekly installments prescribed." Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 115, 246 S. W. 72, 76 (28 A. L. R. 1402), same case in Court of Civil Appeals, 226 S. W. 154.

A neccessary result is that there are cases for "lump sum" adjustments not governable by section 15a. Apparently, the latter section (with its reference to "legal rate of interest") has relation only to cases of continued "weekly payments" of increased amount but of decreased number.

In cases governed entirely by section 15, "present value" of "weekly payments" is to be fixed on evidence; and there is lacking inexorable requirement that the "legal rate of interest" be applied in measure of "discount." Ibid.; Consolidated Underwriters v. Saxon (Tex. Civ. App.) 250 S. W. 447; Id. (Tex. Com. App.) 265 S. W. 143.

The Court of Civil Appeals in reforming the judgment and as basis for that action held to the contrary; and that ruling (with consequent action) is the matter of Miss Herzing's assignment, which is sustained.

2. Industrial incapacity (at least incapacity for such work at Miss Herzing had been doing) is established by the verdict. And there is evidence tending to show: Poverty; lack of relationships wherein others are bound for her aid or support; necessity for help in ordinary personal...