Perez v. Consolidated Underwriters, 9658.

• Decision Date: 12 November 1947
• Docket Number: No. 9658.,9658.
• Citation: 206 S.W.2d 162
• Parties: PEREZ v. CONSOLIDATED UNDERWRITERS.
• Court: Texas Court of Appeals

206 S.W.2d 162

PEREZ v. CONSOLIDATED UNDERWRITERS.

No. 9658.

Court of Civil Appeals of Texas. Austin.

November 12, 1947.

Rehearing Denied December 1, 1947.

Appeal from District Court, Bexar County; V. K. Quin, Judge.

Suit under the Workmen's Compensation Act by Consolidated Underwriters to set aside an award of the Industrial Accident Board in favor of Andres H. Perez. From a judgment granting relief, defendant appeals.

Judgment reversed and cause remanded.

G. Woodson Morris, of San Antonio, for appellant.

W. L. Kemper and Eugene J. Wilson, both of Houston, for appellee.

HUGHES, Justice.

This is a workmen's Compensation case in which appellant, Andres H. Perez, was the employee, appellee, Consolidated Underwriters, was the insurer, and the Apache Packing Company was the employer. This suit was filed by appellee to set aside an award made appellant by the Industrial Accident Board.

Upon a jury verdict judgment was rendered against appellant, who filed a motion for new trial, alleging jury misconduct, which, after hearing, was overruled by the trial court; hence this appeal.

Thirty-two special issues were submitted to the jury.

In answer to Special Issue No. 1 the jury found that appellant had sustained no injury.

In answer to Special Issue No. 22 the jury found that the employer had not received notice of appellant's injury within 30 days from the date of injury.

Appellant's first point is that the trial court erred in submitting Special Issue No. 22 to the jury for the reason that the evidence was undisputed that Gregorio Saez, foreman of the employer, had actual notice of the injury at the time of its occurrence. We need not discuss the evidence in this regard because this issue was not properly raised by appellee's pleadings.

In appellee's brief it is stated that by verified supplemental petition it denied that appellant gave notice of any injury within the time prescribed by law. Such supplemental petition did make such denial. The petition, however, was verified only to the extent of denying that appellant filed his claim with the Industrial Accident Board within 12 months from the date of injury.

Appellant having plead that notice of injury was duly and timely given, the trial court should have accepted this as true in absence of a sworn denial. Rule 93, Texas Rules of Civil Procedure. There being no sworn denial of this allegation, the trial court erred in submitting Special Issue No. 22 to the jury.

The second and last point relates to alleged misconduct of the jury.

From appellant's point of view the evidence shows that while he was engaged in loading round bone cakes weighing from 25 to 30 pounds into wheelbarrows, one of the cakes fell on his left big toe, bruising it severely. The toe failed to heal; infection set in and the left leg was amputated above mid-thigh about March 27, 1946, and that the loss of his leg was due to the injury to his toe.

Appellee pleaded that the loss of the leg was not the result of the toe injury, but was due to disease. Medical testimony that appellant was afflicted with arteriosclerosis which necessitated the amputation, and that the toe injury was not responsible for the loss, was introduced by appellee.

The foreman of the jury testified on motion for new trial, in substance:

That Special Issue No. 1 inquiring if appellant had suffered any injury was answered first; that the first vote was 3 for and 9 against appellant; that one of the jurors said, in the presence of the jury, that he had a disease similar to the one appellant had and that if he had not taken care of his leg he would have lost it; that this juror exhibited his leg to the jury, pointing out red spots which he described as being the same kind of spots that appellant had on his leg. From this the juror verbally concluded that appellant had the same disease as he, the juror, had and therefore he did not sustain any injury. Following this discussion and demonstration, the jury answered Special Issue No. 1 adversely to appellant, after which the jury lost interest in the remaining issues and in a rather slipshod manner answered them so as to be consistent with the answer to the first issue.

The foreman was one of the...