Holloway v. Texas Indemnity Ins. Co.

• Court: Texas Supreme Court
• Writing for the Court: Leddy
• Citation: Holloway v. Texas Indemnity Ins. Co., 40 S.W.2d 75 (Tex. 1931)
• Decision Date: 10 June 1931
• Docket Number: No. 1243-5747.,1243-5747.
• Parties: HOLLOWAY et al. v. TEXAS INDEMNITY INS. CO.

40 S.W.2d 75

HOLLOWAY et al. v. TEXAS INDEMNITY INS. CO.

No. 1243-5747.

Commission of Appeals of Texas, Section B.

June 10, 1931.

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

Action by the Texas Indemnity Insurance Company against W. E. Holloway and others to set aside an award made by the Industrial Accident Board. Judgment for defendant was reversed and remanded by the Court of Civil Appeals [30 S.W.(2d) 921], and defendants bring error.

Affirmed.

Clark & Clark, of Fort Worth, for plaintiffs in error.

Goree, Odell & Allen and L. L. Gambill, all of Fort Worth, for defendant in error.

LEDDY, J.

On November 10, 1928, claim was filed before the Industrial Accident Board by plaintiff in error in which he sought an award for compensation against defendant in error on account of a hernia alleged to have been sustained on December 12, 1926, while engaged in the performance of his duties as an employee of the Magnolia Petroleum Company, to whom defendant in error had issued a policy of insurance under the Workmen's Compensation Law.

From an award sustaining the claim, defendant in error duly prosecuted its appeal to the district court. Plaintiff in error filed the usual cross-action in which he sought to excuse his failure to file a claim before the Industrial Accident Board within six months after the injury, as required by section 4a, article 8307, R. S. 1925. In his plea it was averred that immediately after the accident he informed his employer, the Magnolia Petroleum Company, he had sustained a hernia and received the assurance that the company would file his claim before the Industrial Accident Board and he did not learn of its failure to do so until November 10, 1928, at which time he promptly presented his claim to the board.

The jury found in answer to special issues that plaintiff in error did inform his employer of the injury and it promised to present his claim to the Industrial Accident Board, which promise was relied upon by him.

Upon these, and other findings favorable to plaintiff in error, judgment was rendered in his favor against defendant in error for a lump-sum recovery.

The Court of Civil Appeals, 30 S.W.(2d) 921, reversed and remanded the case for another trial upon the sole ground that the trial court erred in applying the usual rule requiring plaintiff in error to establish before the jury the fact he had sustained a hernia, as alleged, by a preponderance of the evidence, holding that under the Compensation Law he should have been required to establish such fact beyond a reasonable doubt.

We are unable to concur in the conclusion of the Court of Civil Appeals that in a trial before a jury in the district court on appeal from an award of the Industrial Accident Board, the claimant, in hernia cases, rests under the burden of establishing before the jury facts essential to a recovery beyond a reasonable doubt.

The holding of the Court of Civil Appeals is based upon its interpretation of section 12b, art. 8306, R. S. 1925, which provides:

"In all claims for hernia resulting from injury sustained in the course of employment, it must be definitely proven to the satisfaction of the board:

"1. That there was an injury resulting in hernia.

"2. That the hernia appeared suddenly and immediately following the injury.

"3. That the hernia did not exist in any degree prior to the injury for which compensation is claimed.

"4. That the injury was accompanied by pain."

The provision for appeal by the insurer from an award of the board is found in section 5, art. 8307; the same being as follows: "If the final order of the board is against the association, then the association and not the employer shall bring suit to set aside said final ruling and decision of the board, if it so desires, and the court shall in either event determine the issues in such cause instead of the board upon trial de novo and the burden of proof shall be upon the party claiming compensation."

It will be observed that the provisions of section 12b, art. 8306, do not purport to deal with the procedure in a trial before a jury on appeal from an award of the board. In section 5, art. 8307, where such procedure is dealt with, we find a declaration that the trial in the district court shall be de novo "and the burden of proof shall be upon the party claiming compensation." Applying the well-known statutory rule of construction requiring our courts in interpreting legislative acts to give words not specially defined their ordinary and usual meaning, the phrase "burden of proof" must be given its well-accepted meaning in civil cases, which is that the one upon whom the burden rests must establish facts essential to entitle him to the relief sought by a preponderance of the evidence.

We think a proper construction of the provision of section 12b, art. 8306, that certain facts must be definitely established to the satisfaction of the board, is that it was intended as a rule to govern the board in reaching a decision as to compensation in hernia cases and also as a guide to the court when the case is tried de novo in weighing the evidence against an objection that it is insufficient to sustain a jury's findings.

This construction of the statute is fully justified when the fact is taken into consideration that the Legislature knew at the time of the passage of section 12b, art. 8306, similar provisions in other statutes had been interpreted by the courts of this state as being merely a guide to the court and not as operating to change the rule of procedure in jury trials as to discharging the burden of proof by a preponderance of the evidence.

The construction by our courts of similar language in other statutes is illustrated in the statute in regard to divorce. Article 4632, R. S. 1925, contains the declaration that a divorce shall be rendered only "upon full and satisfactory evidence, upon the judgment of court affirming the material facts alleged in the petition." Our Supreme Court, in Moore v. Moore, 22 Tex. 237, in discussing the effect of the above language, says: "There must be the `full and satisfactory evidence,' and `the verdict of a jury;' both must concur, before the court can lawfully proceed to decree a...