Ocean Accident & Guaranty Corporation v. McCall, 1289-5763.

• Decision Date: 06 January 1932
• Docket Number: No. 1289-5763.,1289-5763.
• Citation: 45 S.W.2d 178
• Parties: OCEAN ACCIDENT & GUARANTY CORPORATION, Limited, v. McCALL et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

45 S.W.2d 178

OCEAN ACCIDENT & GUARANTY CORPORATION, Limited, v. McCALL et al.^*

No. 1289-5763.

Commission of Appeals of Texas, Section B.

January 6, 1932.

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

Suit by the Ocean Accident & Guaranty Corporation, Limited, against A. McCall and others, to set aside a final award of Industrial Accident Board to named defendant, in which he filed a cross-action praying for a

lump-sum settlement. From a judgment for defendant, the plaintiff appealed to the Court of Civil Appeals, and from its affirmance of the judgment [25 S.W.(2d) 653], the plaintiff brings error.

Judgments of district court and Court of Civil Appeals reversed, and cause remanded with instructions.

Baker, Botts, Parker & Garwood, of Houston, Tom Scurry, of Dallas, and H. Malcolm Lovett, of Houston, for plaintiff in error.

John D. McCall and Howth, Adams & Hart, all of Beaumont, for defendants in error.

SHORT, P. J.

The nature and the result of this litigation, up to the time it reached the Court of Civil Appeals, is thus stated by Associate Justice Walker of that court in the opinion rendered: "This suit was filed in the district court of Jefferson county as an appeal from a final award of the Industrial Accident Board awarding appellee McCall an operation and compensation for 401 weeks for total permanent incapacity. Appellee, by the usual cross-action, plead a permanent total incapacity, and prayed for a lump sum settlement. He also plead the facts of the operation, and prayed for recovery for the necessary expense of the operation. The jury found in appellee's favor all issues submitted to it, and judgment was accordingly entered for compensation at $20 per week for 401 weeks, less 26 weeks that appellant had previously paid, which was reduced to a lump sum, and for the additional sum of $515.50 as the expense of the operation." 25 S.W.(2d) 653.

The Court of Civil Appeals affirmed the judgment of the district court but made an order that no execution issue in favor of the defendants in error for the sums aggregating $515.50, representing certain expenses for which the testimony shows the defendants in error had not paid, until they should file with the clerk of the district court of Jefferson county an agreement of the persons to whom these items are owing, releasing the plaintiff in error from all liability thereon.

The transcript in this case covers more than 300 pages. The court submitted to the jury, on its own motion, 40 special issues, which were answered, and 6 special issues at the request of the plaintiff in error, which were answered, all, as stated by the Court of Civil Appeals, favorable to the defendant in error.

The application for the writ of error contains 28 assignments of error. We have considered all of these assignments and have reached the conclusion that all of them ought to be overruled, except 2, and we have necessarily reached the conclusion that the opinion of the Court of Civil Appeals properly declares the law of the case and fully disposes of all matters except those which we shall discuss. The Supreme Court granted the application on the first and second assignments of error, both of which relate to the same subject matter; the first being as follows: "The trial court erred in rendering judgment for the payment of compensation in a lump sum, no issue having been submitted to or passed upon by the jury upon which to base the judgment."

We sustain this assignment of error. The defendant in error sought to recover compensation payable in a lump sum, having pleaded that manifest injustice and hardship would result if such recovery be not granted. The court did not submit an issue on this subject to the jury, neither party asking its submission. The only testimony relating to the question of manifest hardship and injustice on the question of a lump-sum settlement was the testimony of the defendant in error A. McCall, the alleged injured employee. The trial judge assumed the prerogative to declare that the material allegations of the pleading of the defendants in error on this subject were sustained by this testimony of the injured employee. Whether manifest hardship or injustice would result to the defendant in error A. McCall was not only an independent issue, but in order for the defendants in error to recover a judgment for a lump sum the material allegations of his...