Norwich Union Indemnity Co. v. Wilson

• Decision Date: 27 March 1929
• Docket Number: (No. 10335.)
• Citation: 17 S.W.2d 68
• Parties: NORWICH UNION INDEMNITY CO. v. WILSON et al.
• Court: Texas Court of Appeals

17 S.W.2d 68

NORWICH UNION INDEMNITY CO. v. WILSON et al.

(No. 10335.)

Court of Civil Appeals of Texas. Dallas.

March 27, 1929.

Rehearing Denied May 4, 1929.

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Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Suit by R. L. Wilson against the Norwich Union Indemnity Company to set aside a ruling of the Industrial Accident Board, in which the Globe Indemnity Company intervened. From the judgment, defendant appeals. Reversed and remanded.

Wilson & Biggers and Roy W. McDonald, all of Dallas, for appellant.

White & Yarborough, W. H. Flippen, and John T. Gano, all of Dallas, for appellees.

VAUGHAN, J.

For convenience, the parties to this appeal will be designated as follows: Norwich Union Indemnity Company, the defendant, as appellant; R. L. Wilson, the plaintiff, as appellee; and Globe Indemnity Company as intervener.

Appellee filed his suit December 29, 1925, to set aside a ruling of the Industrial Accident Board of Texas, denying his claim for compensation, under the Texas Workmen's Compensation Law, for injuries sustained at Florence, Ala., on October 24, 1924, while in the employ of the Uvalde Paving Company, a Texas corporation, with its home office in Dallas, Tex. Appellee alleged: That he suffered total and permanent incapacity from such injuries; that appellant was the insurer of his employer under the Texas Workmen's Compensation Law; that he was employed in Texas by the Uvalde Paving Company and sent by said company to Alabama temporarily; that prior to and at the date of his employment appellee was a citizen of Texas; that at the date of his injuries appellee was making $42 per week; that he gave notice of injury and filed his claim for compensation within the statutory period; that from the board's final ruling he perfected his appeal within the proper time. Appellee, as excuses for failing to file notice of his injury and claim for compensation within the statutory period of 30 days and 6 months, respectively, alleged: (a) That he had no common-law suit against his employer; (b) that intervener, after his injury, began to pay appellee weekly compensation, which he believed was being paid under the laws of Texas; (c) that he was physically incapacitated to file claim for 9 months; (d) that appellant had not been prejudiced by his delay; (e) that irreparable injury would result to appellee if his claim were not heard, in that the Texas Compensation Law prevents suit against his employer, that the premium had been paid to appellant and that such premium was deducted from appellee's wage, and that he would lose it; (f) that his delay was through a mistake of fact and that appellee had been diligent; that the two insurance companies, namely, appellant and intervener, acted together to mislead by improper payments, in order that appellant might be discharged from liability. Appellee asked for a lump sum payment as compensation, in the sum of $8,000. Appellant answered appellee's suit with certain pleas in abatement, general demurrer, special exceptions, general and special denials, and a plea by way of estoppel, all of which will be reflected in the discussion of the propositions based upon the rulings by the trial court upon said pleas.

On the 25th day of March, 1927, the Globe Indemnity Company, under leave of the court, filed its plea of intervention, and as grounds for recovery and its right to so intervene alleged: That the intervener was the insurer of the Uvalde Paving Company in the state of Alabama; that said paving company was the employer of appellee; that in the course of said employment, appellee was injured in the state of Alabama and a claim was filed in said state on behalf of appellee and allowed against intervener; that, based upon such claim and award, said intervener paid out to appellee in good faith $928, and further pleaded that, if appellee's claim, as a matter of fact and of law, is against the Norwich Union Indemnity Company, then such intervener is entitled and should be allowed to recover out of any sum allowed appellee, who is alleged to be insolvent, the sum of $928.

To this plea of intervention, appellee directed a plea in abatement which was by the trial court overruled. Against this action no assignment of error was presented by appellee, or other complainant, but, to the contrary, he has specifically stated in his brief filed herein that he has not assigned any error thereto and does not wish for the judgment to be reversed on that ground. Appellant answered said plea of intervention by general demurrer and general denial. Said general demurrer was not presented to the trial court for action thereon. The trial court overuled appellant's plea in abatement, general demurrer, and special exceptions addressed to appellee's first amended original petition and submitted the case upon its facts to a jury by special issues.

Under leave of the court, appellant, on November 18, 1927, filed its first supplemental answer, and, as stated therein, "supplementing its first amended original answer," which supplement included 21 special exceptions addressed to paragraph 11 of appellee's first amended original petition, to which appellant had replied by its said amended answer filed November 17, 1927. Without objection, the trial court heard and passed upon said special exceptions. Therefore, notwithstanding said exceptions were not presented by a plea in conformity with rules Nos. 8 and 10, nor observed rule No. 12 for the district and county courts of Texas (see Harris' Rules of the Courts, 1921 Edition), we feel called upon to review the disposition made of same by the trial court.

Practically all of said exceptions are embraced within 11 propositions, numbered in appellant's brief, respectively, 3 to 13, inclusive. In discussing the ruling on said exceptions, we shall treat each proposition as embracing only one exception and consider said propositions as the exceptions passed upon and presented for review.

As thus grouped and classified as per scope and effect, the court overruled each one of appellant's exceptions, same being as follows:

"Third: That appellee, in attempting to allege justification for delay of one year in filing notice of injuries and claim for compensation with the Industrial Accident Board, only alleged conclusions and beliefs. This was in effect but a general demurrer and as said petition was not subject thereto, said special exception was properly overruled. Rules Nos. 17 and 18 for the District and County Courts; Harris' Rules of the Courts (1921 Edition);

"Fourth: That the allegations in general terms, that `this is a meritorious case,' and `plaintiff has a meritorious case,' are mere conclusions of the pleader;

"Fifth: That the allegations, that appellee was not and is not permitted to sue his employer under the common law; that the Texas Compensation Law robs appellee of any suit against his employer, the Uvalde Paving Company; that if he is denied compensation, both insurance companies go scot free, in that appellee has no claim under the Alabama law whatsoever, but has one under the Texas law, and if denied the right to prosecute his claim under the Texas law, both companies are acquitted of liability, notwithstanding that said insurance has been paid for; that under the Alabama law appellee could only recover the sum of $12.00 per week, — therefore, appellant would make a savings of $8.00 per week of appellee's compensation; that said exception should have been sustained because appellee thereby attempted to allege in general terms matters of law which are conclusions and immaterial to any issue of appellee's claim against appellant;

"Sixth: To the allegations `that plaintiff did not know he was being paid according to the Alabama law, and did not know his employer had a different insurer in the State of Alabama from the one in Texas, because the knowledge of such fact is as a matter of law and imposed upon him';

"Seventh: To the allegation `that plaintiff was diligent, and that his failure to file claim within the six months allowed by law was not due to any negligence, because same were conclusions';

"Eighth: To the allegations `that plaintiff was informed and believed that he was being paid compensation under the Texas law, because same were conclusions of the pleader, and were fundamentally defective, in that, they wholly failed to show that plaintiff was responsible for such information';

"Ninth: `That plaintiff's failure to file claim for compensation was solely due to mistake of fact because it was a conclusion and could not excuse appellee's delay in filing claim for compensation';

"Tenth: To the allegation, `that defendant has not been injured or prejudiced by the failure to file claim for compensation within six months, because same was filed within the period of the statute of limitation, on the ground that such allegation was a conclusion and wholly prejudicial';

"Eleventh: To the allegation `that when plaintiff accepted weekly compensation from the Globe Indemnity Company, he was too weak, too sick, disabled and incapacitated to investigate or to make any claim whatsoever, and that he made no claim in the State of Alabama and only accepted said payments because they were voluntarily tendered him upon the representation that he was entitled to same, because such allegations were immaterial to plaintiff's claim and mere conclusions';

"Twelfth: To the allegation that `plaintiff filed his claim for compensation within six months after he became able to do so, on the ground that same is a conclusion';

"Thirteenth: To the allegations, `that the defendant and intervener had acted together to deprive plaintiff of his compensation; that the intervener in paying him compensation acted on behalf of defendant to mislead plaintiff; that the failure of plaintiff to file his claim was the result of a mistake, accident and fraud on the part of defendant,...