Mackintosh v. Texas Employers Insurance Ass'n

• Decision Date: 28 September 1972
• Docket Number: No. 17938,17938
• Citation: 486 S.W.2d 148
• Parties: Simon F. MACKINTOSH, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 148

486 S.W.2d 148

Simon F. MACKINTOSH, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.

No. 17938.

Court of Civil Appeals of Texas Dallas.

Sept. 28, 1972.

Rehearing Denied Oct. 19, 1972.

Sammy D. Sparks, Seale & Stover, Jasper, for appellant.

Edward E. Crowell, Jr., Gardere, Porter & DeHay, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

Simon Mackintosh brought this action against Texas Employers Insurance Association seeking to set aside and cancel a compromise and settlement agreement relating to a claim under the Workmen's Compensation Law of Texas. Mackintosh alleged that while in the scope and course of his employment for Burris Transfer and Storage Company, Inc., on August 9, 1969 he sustained an injury to his hand and that he seasonably filed his claim with the Industrial Accident Board of Texas to recover workmen's compensation benefits allowed for such injury. He alleged that through fraud and/or mistake he was induced to enter into and execute a compromise settlement agreement wherein he would have received the sum of $376 (in addition to $301 previously paid) in complete settlement of his claim. He charged that the insurance company's adjuster and agent caused him to settle his claim by representing to him that $376 was the maximum amount which he could recover under the law for his injury whereas the injury sustained by him was of such a nature as would entitle him a to a larger amount of compensation.

The case was tried to a court and a jury. In response to special issues the jury found that on August 9, 1969 Mackintosh had sustained an injury to his right hand while in the course and scope of his employment and that such injury resulted in total loss of use of such hand from August 11, 1969 until September 22, 1969. The jury then found that the injured employee had sustained a permanent partial loss of use of his right hand, beginning September 22, 1969, to the extent of 75 per cent. The jury specifically found that the loss of use of the employee's right hand did not result solely from the loss of use of the index finger. In response to Issues 20 and 21 the jury found that the adjuster or agent for the insurance company was knowledgeable of the Workmen's Compensation Law of the State of Texas at the time the compromise settlement was entered into but that Mackintosh was not knowledgeable of such law at that time. In response to Special Issue No. 22 the jury found that Mackintosh relied on the insurance company's agent, McDaniel, when he represented that $376 was the maximum additional amount to which Mackintosh was entitled under the Workmen's Compensation Law. In answer to Special Issue No. 23 the jury found that at the time the settlement was made McDaniel did not know that plaintiff's disability was greater than 20 per cent permanent partial disability as applied to the right index finger.

Mackintosh, in his motion for judgment, asked the court to set aside and disregard the answer of the jury to Special Issue No. 23 as being immaterial and to render judgment in his favor decreeing that the compromise settlement agreement should be set aside and held to be null and void.

The trial court rendered judgment, based upon the verdict, denying Mackintosh any relief, leaving the compromise settlement agreement in full force and effect.

Appellant Mackintosh advances a number of points on appeal but primarily contends that the trial court was in error in rendering judgment based upon the answer of the jury to Special Issue No. 23 in that such issue, and the jury's answer thereto, were immaterial and could not, as a matter of law, constitute the basis of a judgment defeating appellant's claim of fraud and/or mistake.

Resolution of the questions presented requires a condensed statement of the relevant facts which are essentially undisputed.

Mackintosh, a native of Scotland, age 72, with a fifth grade education, has performed manual labor requiring the use of his hands during the course of his active life. On August 9, 1969, while working for his employer, a toy truck fell from a closet shelf and struck the back of his right hand. He filed notice of injury and claim for compensation with the Industrial Accident Board and it was stipulated that his average weekly wage was not less than $85. The injury occurred at Jasper, Texas about 11:00 o'clock in the morning and he continued work that day. He came back to work on Monday at Beaumont and tried to work but could not because his hand was hurting. He told his foreman about the condition of his hand and the foreman told him to go to see 'his doctor'. He went to the company doctor but found that he was not in the office. When asked what happened when the doctor wasn't there he replied, 'He just said to go to the doctor's office in Beaumont and I got ahold of a bone specialist.' He went to a doctor's hospital and asked for a bone specialist and was referred to Dr. Alexander. Dr. Alexander examined him and put a splint on his finger but did not tell him what was wrong with him that day. He reported to the office of the insurance company in Beaumont where he gave information concerning his injury. About two weeks later he saw Dr. Alexander at which time he removed the bandages and x-rayed his hand. The doctor told him that 'the bones and the knuckles were all broke.' Mackintosh stated that his entire hand was swollen and especially his right index finger knuckle. There is no evidence in this record that Dr. Alexander ever gave Mr. Mackintosh a written report concerning his condition nor is there any evidence as to who paid Dr. Alexander's fee.

Mackintosh went to the office of the insurance company on September 22, 1969 and talked with Mr. McDaniel, the agent or adjuster for the insurance company. McDaniel gave him a check for $301 which he said was for back pay. This amount was equivalent to compensation for a period of six weeks and one day. Mackintosh then testified:

'Q Then after he gave you the check for six weeks back pay, what did he say to you then?

A Then he told me if you want to sign the agreement now, or you are only allowed twenty percent on the finger. I told him I may as well if that is all I would get, I may as well take it.

Q Mr. Mackintosh, did he tell you that twenty percent was based on a doctor's report?

A Yes, sir.

Q Did he tell you it was Dr. Alexander's report?

A Yes, sir.

Q Mr. Mackintosh, did he tell you an amount of money that you were entitled to?

A He told me I would get $376.00 sent to me.

Q He didn't give it to you right then?

A No, sir.

Q Mr. Mackintosh, did he tell you that was the maximum amount you were entitled to under the law in addition to what you had already gotten?

A Yes, sir.

Q Okay, Mr. Mackintosh, do you have any knowledge yourself of the Workmen's Compensation Law?

A No, not a bit.

Q Mr. mackintosh, did Mr. McDaniel tell you that this is what the law said?

A What the law allowed.

Q Did you believe him?

A Yes, sir, I believed the doctor, too.

Q Mr. Mackintosh, at the time that this occurred, did he ask you to let you look at your hand and did he look at your hand?

A I showed him my hand.'

At this juncture photographs were introduced in evidence which revealed a swelling of the right index finger knuckle.

Mackintosh denied that Dr. Alexander had released him to return to work but stated that Mr. McDaniel told him that he could go back to work. He said that at the time he signed the compromise settlement agreement he was not able to return to work due to the injury to his hand. He then related facts with reference to his efforts to work following the agreement and the continued disability as applied to his right hand. On cross-examination he said:

'Q At the time you signed this form, you told us your hand was swollen?

A Yes, sir.

Q And you knew your knuckle was bothering you then, didn't you?

A I knew my knuckle was broke all along.

Q And if anybody told you only your finger was hurt, you would know that wasn't true?

A I knew it wasn't true.'

On further cross-examination he reiterated that he had relied upon McDaniel's statement that the sum to be paid him was the total amount that he could recover under the Workmen's Compensation Law. After the agreement had been signed he was examined by Dr. Popejoy on two occasions. Dr. Lee T. Popejoy testified that in his opinion Mackintosh had total and and permanent loss of use of his right hand as a result of the injury of August 9, 1969.

Mr. James A. McDaniel, an adjuster and agent for the insurance company, had had extensive experience in handling workmen's compensation claims. He was the senior adjuster in the Beaumont office at the time Mackintosh's claim was handled. He was thoroughly familiar with the Workmen's Compensation Law. He saw Mackintosh on one occasion prior to September 22, 1969. On September 22 he paid Mackintosh for six weeks and one day compensation amounting to $301. This was based on an average daily rate of $17 for temporary total disability. He said that the compensation allowed for the loss of the index finger was forty-five weeks whereas loss of the hand would be compensated for one hundred and fifty weeks.

McDaniel said that at the time the settlement was made on September 22, 1969 he had received a report from Dr. Alexander but not the doctor's final report. Prior to the settlement he had had other reports from. Dr. Alexander in narrative form but these did not express any opinion concerning percentage of disability. He said when he talked to Mackintosh about settlement he called Dr. Alexander's office and was told by either Dr. Alexander or one of his nurses that the percentage of disability to Mackintosh's finger was 20 per cent. He said he based his evaluation of the case on the doctor's report. He admitted at that time he looked at Mackintosh's hand and saw that it was injured. He looked at the knuckle and saw that it was swollen. He computed the value of 20 per cent permanent partial loss of use...