Security Union Ins. Co. v. Gullett

• Decision Date: 21 February 1931
• Docket Number: No. 12429.,12429.
• Citation: Security Union Ins. Co. v. Gullett, 36 S.W.2d 1085 (Tex. App. 1931)
• Parties: SECURITY UNION INS. CO. v. GULLETT.
• Court: Texas Court of Appeals

36 S.W.2d 1085

SECURITY UNION INS. CO. v. GULLETT.

No. 12429.

Court of Civil Appeals of Texas. Fort Worth.

February 21, 1931.

Rehearing Denied March 14, 1931.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Action by W. A. Gullett against the Security Union Insurance Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Bullington, Boone, Humphrey & King, of Wichita Falls, for appellant.

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

BUCK, J.

W. A. Gullett sued the Security Union Insurance Company, a corporation, for compensation alleged to be due him by reason of personal injuries received on July 31, 1929, while he was working for the Everetts Drilling Company at Walters, Okl. He alleged that the average daily wage for an employee of the same class as he was, working substantially all of the immediately preceding year, was $5 a day. He alleged he was 19 years of age, and prior to said injuries had been exceptionally strong and robust; that he possessed a fair education and was reasonably intelligent; that he was a good worker and had always given satisfaction to his employer. Therefore, he averred, within two or three months of the time of his injuries his average weekly wage would have been $35 a week; that the contract of employment was entered into in Wichita County, and that at the time of his injuries his employer was engaged in a business subject to the Workmen's Compensation Act of the state of Texas; that within 30 days of the time of said injuries the plaintiff notified the Industrial Accident Board and the employer of his injuries, and thereafter, within six months of the time of said injuries, plaintiff filed his claim for compensation with the Industrial Accident Board in the manner prescribed by law, claiming compensation of said defendant by reason of said injuries and for the disability produced by said injuries. He alleged that the accident had injured his index finger, causing it to be stiff, and also had necessitated an operation for appendicitis, and that he was totally disabled.

He further alleged that the Industrial Accident Board set his claim for hearing on November 26, 1929, and thereafter on the 4th day of December, 1929, said board made its final ruling and decision in said case; that thereafter on the 9th day of December, 1929, the plaintiff gave notice in writing to the board that he was not willing and would not consent to abide by the ruling and decision of the board in said cause, and that he would file a suit within 20 days of said date in a court of competent jurisdiction for the purpose of setting aside the award of the board and for such relief as he might be entitled to under the law, and did on December 23, 1929, file in the district court the claim to set aside the judgment and award of the Industrial Accident Board, and for general relief.

Plaintiff further alleged that he had been forced to employ an attorney, and had assigned to him one-third of his claim, which was the usual and customary fee for such services and the amount prescribed by the Workmen's Compensation Act. He further alleged that he had a wife and a small child who were dependent on him for support that neither he nor his wife owned or possessed any property of any kind whatever and that they have no income or means of support other than the proceeds of the labor of plaintiff; that he is indebted in large sums to various persons, including a hospital bill, which debts have been incurred since his injuries, for which he claimed compensation in the sum of $500, and that in all probability he will be compelled to have an operation and medical treatment which will require several hundred dollars; that by reason of these facts he should be entitled, under the law, to a lump sum settlement, for which he prayed.

Defendant pleaded a general demurrer and certain special exceptions and a general denial, and further pleaded that any injury which the said plaintiff received did not cause his appendicital operation, but that the only injury he received and for which he put in a claim before the Industrial Accident Board was an injury to his finger which has been fully and completely paid.

The cause was tried before a jury on February 25, 1930, and the jury in answer to special issues found that (1) plaintiff, on July 31, 1929, fell upon or against the rotary or some part thereof; (2) that he suffered internal injuries therefrom; (3) that the plaintiff's falling against the rotary table was the proximate cause of his internal injuries; (4) that the plaintiff was incapacitated to work by reason of such internal injuries; (5) that he was totally incapacitated to work for any period of time by reason of such injuries; (6) that such disability was permanent; (7) that plaintiff suffered an injury to his left hand by reason of the accident; (8) that such injury caused a disability; (9) that the injury to his hand caused a disability for a period of 35 days; (10) that the injury to his index finger of his hand caused a disability of 50 per cent.; (11) that the average weekly wage of W. A. Gullett at the time of the injury, which was deemed just and fair to both parties, was $35 a week; (12) that the daily wage of an employee of the same class, working substantially the whole of the year immediately preceding the time of the plaintiff's injury, was $6 a day; (13) that plaintiff was entitled to a lump sum settlement; (14) that plaintiff was not discharged on or about July 29, 1929, from his employment.

The court entered judgment for plaintiff against the insurance company for the sum of $6,443.85, from which judgment the defendant has appealed.

Opinion.

It will be remembered that the plaintiff sued the Security Union Insurance Company, and no special exception to the designation of the employer as the Everetts Drilling Company was urged in the court below. On a motion for new trial it was urged that there was a variance between the allegation that the employer was the Everetts Drilling Company and the evidence that C. A. Everetts was the employer named in the insurance policy; whereupon the court permitted the plaintiff to amend his pleadings by a trial amendment, in which he alleged that the Everetts Drilling Company and C. A. Everetts are one and the same person, and that plaintiff was employed at the time stated in his petition by the said C. A. Everetts. Appellant urges here, as he did in his motion for new trial, that the trial court erred in allowing a trial amendment after the jury's verdict was rendered over the objection of defendant.

The evidence further shows that the insurance company had paid the claimant $17.30, and had previously paid to N. L. Hindgeons $64.43, a total of $81.73, and had made no objection to the claim on the ground that it did not insure the Everetts Drilling Company, but did insure C. A. Everetts.

In Kelsey v. Myers, 29 S.W.(2d) 855, 858, the Court of Civil Appeals at Eastland said: "Further, to present the question of variance as one of law, the evidence should have been objected to on that ground at the time it was offered, or when the variance became apparent, the counsel should have moved to exclude the evidence, or at least in some appropriate way raised the question and given the trial judge an opportunity to pass on it. Dallas Plumbing Co. v. Harrington (Tex. Civ. App.) 275 S. W. 190, and authorities therein cited, and 21 R. C. L. p. 606, § 149."

It is well settled in this state that the question of variance is never material in the absence of surprise. Certainly the defendant could not have claimed to have been surprised in this case, since, from the time that the claim was filed before the board, many months before the suit was filed, the claimant and the Industrial Accident Board always named the employer as the Everetts Drilling Company. The defendant at no time ever denied its liability to this plaintiff, but had actually paid him some compensation. It had paid his hospital bills and doctors' bills. Its own receipts and correspondence show that C. A. Everetts was the employer, and there was not even a suggestion on the part of the defendant of surprise.

In 49 Corpus Juris, p. 810, § 1191, it is said: "Modern authorities hold that no variance between the allegation of a pleading and the proof offered to sustain it shall be deemed material if the adverse party is not surprised or misled to his prejudice in maintaining his action or defense upon the merits."

That text is supported by authorities from various jurisdictions, among them about twenty-five Texas cases, some of which are McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721, Wilson Hydraulic Casing Pulling Mach. Co. v. James (Tex. Civ. App.) 271 S. W. 424, and other cases.

In Federal Surety Co. v. Ragle, 25 S.W.(2d) 898, 901, this court said: "We overrule as immaterial the further contention that the evidence shows that the Shaw & Rathke is a corporation, and not a partnership as alleged by the appellee in his cross-action for compensation. This fact only incidently appeared in the testimony of a witness while being examined. It was not made the basis of a defense in any way. There is no contention that Shaw & Rathke were not subscribers or that appellee was not employed by them. At most it can amount to no more than a variance in matter not in issue. In every case, to be fatal, a variance must be such as to surprise or mislead the parties to be charged. See Sealy Cotton Co. v. Gustafson & Spencer, Inc. (Tex. Civ. App.) 258 S. W. 911."

It is urged under the authorities cited that appellant is estopped to raise the question. See, also, Texas Employers' Insurance Ass'n v. Newton (Tex. Com. App.) 25 S.W.(2d) 608.

Appellant relies upon the case of New Amsterdam Casualty Co. v. Harrington, 290 S. W. 726, by the Commission of Appeals, in which it is said:

"The evidence shows that a copartnership composed of Gragg and others was the employer, and that Harrington...