Liberty Universal Ins. Co. v. Burrell

• Decision Date: 08 January 1965
• Docket Number: No. 16591,16591
• Parties: LIBERTY UNIVERSAL INSURANCE COMPANY, Appellant, v. Roosevelt BURRELL, Appellee.
• Court: Texas Court of Appeals

Page 323

386 S.W.2d 323

LIBERTY UNIVERSAL INSURANCE COMPANY, Appellant, v. Roosevelt BURRELL, Appellee.

No. 16591.

Court of Civil Appeals of Texas, Fort Worth.

Jan. 8, 1965.

Rehearing Denied Feb. 5, 1965.

Brown, Day & Crowley, and M. Hendricks Brown, Fort Worth, for appellant.

Hill, Paddock & Street, and John G. Street, Jr., Fort Worth, for appellee.

MASSEY, Chief Justice.

Judgment appealed from was for weekly benefits provided under the Workmen's Compensation Act for total permanent disability. While the case was pending on appeal the claimant, Roosevelt Burrell, died from causes which may or may not have had relation to the injuries and resultant disability because of which the jury returned a verdict in his behalf.

Liberty Universal Insurance Company, appellant, will hereinafter be referred to as the Company, or Insurance Company. Roosevelt Burrell, now deceased, will be referred to as claimant, although in respect to the final point of error discussed the term will include his estate or those to whom his rights under the judgment survived.

We affirm the judgment of the trial court.

By its first point of error the Company complains because the trial court permitted claimant to introduce in evidence a portion of a letter it had written to the claimant and to the Industrial Accident Board while claimant's case was pending before that quasi-judicial body. Such portion read: 'First of all, we would like to make an unequivocal admission of liability in this case.'

Under the Act, Vernon's Ann.Tex.St. Art. 8306, 'Damages and compensation for personal injuries', Sec. 12e, 'Surgical operation', makes provision that in cases where liability for compensation exists and it is believed that a surgical operation for such injury will effect a cure of the employee or will materially and beneficially improve his condition, the insuring company may demand that such an operation be had. Under what is known as the 'Seelbach case', Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960), it has been held that if an insurance company desires to introduce evidence to show that one who claims compensation of it would have been benefitted by a surgical operation it must have theretofore laid a predicate for such evidence by making an unqualified confession of liability for the payment of such compensation as might be or become due (because of disability sustained by the claimant as the result of the injury sustained) and tender such operation while the case is before the Industrial Accident Board.

It was to comply with such requisite of law that the Company wrote the letter containing the 'admission of liability' above quoted. The Company desired to introduce evidence in the course of any trial in the forum to which an appeal might be taken from an award by the Board demonstrating that the claimant, had he submitted to surgery, would have been cured or his condition materially and beneficially improved.

It is the contention of the Insurance Company that its admission of legal liability 'before the Board' afforded it in the trial court the opportunity to introduce evidence of the curative effects of surgery, if such had been had, as applied to the disability of which complaint was made against it, but--in view of the fact that the proceedings constituted a de novo trial--that admission of liability on its part could not be shown by the claimant.

We reject the contention and overrule the point. Regarding statements and conduct of an adversary which one desires to show upon trial as an admission beneficial to him who tenders proof thereof, it is stated in McCormick and Ray, Texas Law of Evidence, 2nd Ed., Vol. 2, p. 29, 'Admissions of a Party', Sec. 1141, 'Form of Statement' (1st Ed., p. 636, Sec. 497), as follows: 'In general it may be said that any statement made by a party or on his behalf which is inconsistent with his present position is receivable as an admission. The precise form of the statement is immaterial.' Exceptions to such general rule are subsequently mentioned. None of them fit the circumstances of the case before us. We believe it to be governed by the general rule. The Insurance Company's pleadings, as well as actions in conduct of the trial, presented its position as one whereby it denied liability for the claimant's condition or for payment of compensation for any incapacity resulting therefrom. The statement in question was therefore properly admitted into evidence against it.

By a point of error the Company complains because of the wording of Special Issue No. 2, submitted to the jury and found against it, reading as follows: 'Do you find from a preponderance of the evidence that the plaintiff, Roosevelt Burrell, sustained total incapacity for any length of time as a natural result of the accidental personal injuries, if any you have heretofore found be sustained, on or about July 5th, 1962?'

The court has recently written upon a point of error presented in complaint of a special issue...