Security Union Ins. Co. v. Hall

• Decision Date: 25 March 1931
• Docket Number: No. 3575.,3575.
• Citation: 37 S.W.2d 811
• Parties: SECURITY UNION INS. CO. v. HALL.
• Court: Texas Court of Appeals

37 S.W.2d 811

SECURITY UNION INS. CO. v. HALL.

No. 3575.

Court of Civil Appeals of Texas. Amarillo.

March 25, 1931.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by J. H. Hall against the Security Union Insurance Company to set aside a decision of the Industrial Accident Board. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

T. R. Boone and J. Walter Friberg, both of Wichita Falls, for appellant.

E. W. Napier, of Wichita Falls, for appellee.

JACKSON, J.

This suit was instituted in the district court of Wichita county, Tex., by the appellee, J. H. Hall, against the appellant, Security Union Insurance Company, to set aside a decision of the Industrial Accident Board and to recover for injuries alleged to have been sustained by him in the employ of the Continental Oil Company, which carried compensation for its employees with appellant.

The appellee alleged that on November 11, 1926, he was in the employ of the Continental Oil Company, a corporation, and had been for more than twelve months next preceding said date at an average weekly wage of $31.25. That on said date, in the course of his employment, in trying to lift an oil drum from the ground and place it on the loading dock of his employer, in the city of Wichita Falls, his left arm and elbow were broken, strained, wrenched, and otherwise injured, so as to greatly interfere with the movement and use thereof, which condition was permanent.

That within thirty days after the accident and injury he notified his employer and the Industrial Accident Board thereof, and on or about November 17, 1929, filed his claim with said board for compensation in an amount exceeding $1,000. That on February 18th thereafter, the board made and entered its final decision on his claim for compensation. That he gave to the board, as required by law, notice that he was unwilling to and would not abide by the decision of the board, and on March 6th thereafter filed this suit to set aside such decision and to recover compensation under the compensation law. That he was compelled to employ an attorney and contracted to pay him the usual and customary fee for his services.

He alleged that within ninety days after the accident he caused to be prepared, in compliance with the Workmen's Compensation Act, a claim for compensation on account of his injuries and mailed such claim to the Industrial Accident Board. That thereafter his claim was set for hearing by the board, a hearing had thereon, and his claim treated by the board as a filed claim. That he was informed by the agents of the appellant that such claim had been filed. All of which caused him to believe his claim had been filed and constitute good cause for his delay and for failing to file his claim for compensation with the board within the time prescribed by statute.

The appellee alleged, and it was admitted, that the appellant carried the policy of insurance on the employees of the Continental Oil Company at the time of the accident resulting in appellee's injuries.

The appellant answered by pleas in abatement and pleaded in bar general demurrer, general denial, and alleged that on or about June 6, 1929, the appellant and appellee entered into a compromise agreement and settlement, subject to the approval of the Industrial Accident Board of the state. That on or about the 19th of July thereafter the Board made and entered its final decision, ratifying said agreement, which was accepted by appellant and became a valid and binding agreement, has not been set aside, and is res judicata and a full and final release to all claims of appellee for the injuries for which he seeks compensation in this suit.

The appellant further alleges that prior to July 19, 1929, the appellee filed and submitted to the Industrial Accident Board a claim for compensation based on the same claim on which he now seeks to recover, which was by the board on July 19, 1929, duly considered and an award duly made therein, from which the appellee prosecuted his appeal to the district court of Wichita county, Tex., by filing suit in said court to set aside the final ruling of said board; that said case was not prosecuted, but was dismissed, and the award of said board became final and binding and is urged as a full and final settlement of the entire claim of the appellee.

That the alleged condition of appellee is not due to the injuries he alleges he received, but was brought about by physical injuries suffered prior and subsequent to the date of November 11, 1926, for which the appellant is in no way liable.

By supplemental petition and trial amendment, the appellee, after demurring and excepting to appellant's answer, pleaded general denial, admitted that he signed an instrument purporting to be a compromise agreement and that on July 19, 1929, the Industrial Accident Board entered its order purporting to approve said agreement by which he was to receive $25, but that said sum was never paid or tendered to him until after this suit was instituted. That he had sustained an injury in the course of his employment for which the appellant was liable, and that appellant, through its agent, knowing the condition and extent of appellee's injury and the cause thereof, and for the purposes of defrauding appellee, represented to him that he had filed no claim with the Industrial Accident Board within six months, as the law required, but that the company would take care of him and induced the appellee, by his words and conduct, to believe that the appellant would take care of him and that if he would aid it in adjusting the claim without substantial expense to his employer, that he would be retained in the employ of the Continental Oil Company indefinitely. That all of said representations were made to appellee by J. D. Bright, the agent of appellant, immediately before the compromise agreement and thereafter ratified by appellant; that they were false and known to be false and made solely for the purpose of inducing appellee to enter into such compromise agreement and thereby deprive him of compensation. That he believed and relied on such representations that such agreement was filed with the board and thereafter the board undertook to approve such agreement.

That as a matter of fact appellee had not at that time filed a claim with the Industrial Accident Board and the board was without jurisdiction to approve the alleged compromise agreement. That immediately after the attempted approval of such compromise agreement, the appellee employed an attorney, and suit was filed on his claim but was subsequently dismissed because it was learned that no claim had been actually filed with the board. That thereafter a claim was filed and acted upon by the board, and this suit is predicated thereon.

By supplemental answer the appellant urged general demurrer, special exception, and general denial.

In response to special issues submitted by the court in his main charge, the jury found, in effect, that the appellee sustained an injury to his left arm or elbow on November 11, 1926, while attempting to lift an oil drum up on the platform of the Continental Oil Company; that the disability to his arm or elbow by reason of such injuries is 75 per cent., and is permanent; that good cause has been shown for the failure of appellee to file his claim in the time prescribed by statute. Without setting out the findings of the jury on the questions of fraud alleged for setting aside the compromise agreement, it is sufficient to say that such findings are, in substance, that appellee was induced by the fraudulent representations of the agent of appellant to enter into the compromise agreement. In response to special issues given at the request of appellant, the jury found, in effect, that the condition of appellee's left arm or elbow was not caused by rheumatic trouble; that appellee realized that his elbow in his left arm was becoming incapacitated on November 22, 1926; and that he has continually suffered with his arm since said date.

On these findings judgment was entered setting aside the compromise agreement; the decision of the Accident Board made on the 18th of February, 1930, and that the appellee recover of appellant compensation at the rate of $8.66 per week from November 18, 1926, for two hundred consecutive weeks, with interest from the maturity of each weekly payment. That appellant was due appellee $1,725, which constituted past-due compensation for 181 weeks. From this judgment this appeal is prosecuted.

The appellant urges as error the action of the court in failing to require a finding by the jury as to whether appellee received his injury while in the course of his employment, because without such finding the court was not authorized to render judgment against it.

In response to special issue No. 1, the jury found that appellee sustained an injury to his arm or elbow on the 11th day of November, 1926. In response to issue No. 2, they found that he sustained such injury while attempting to lift an oil drum onto the Continental Oil Company's warehouse platform.

The testimony is uncontroverted that appellee was employed by the Continental Oil Company. That he was working for said company on the 11th day of November, 1926. That on that day he was assisting in unloading from a car a carload of drums for his employer and placing them on the wharf of the company....