Southern Casualty Co. v. Vatter

• Decision Date: 10 July 1925
• Docket Number: (No. 1277.)
• Citation: 275 S.W. 1105
• Parties: SOUTHERN CASUALTY CO. v. VATTER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

275 S.W. 1105

SOUTHERN CASUALTY CO. v. VATTER.^*

(No. 1277.)

Court of Civil Appeals of Texas. Beaumont.

July 10, 1925.

Rehearing Denied October 14, 1925.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by J. W. Vatter against the Southern Casualty Company to set aside award of the Industrial Accident Board for plaintiff in unsatisfactory amount. Judgment for plaintiff, and defendant appeals. Affirmed.

Howth, Adams & Hart, of Beaumont, for appellant.

Howell & Stephenson, of Beaumont, for appellee.

HIGHTOWER, C. J.

This suit was filed by the appellee against appellant in one of the district courts of Jefferson county to set aside a final award of the Industrial Accident Board of Texas, made in appellee's favor, but appellee contended that the award was for too small an amount.

Appellant answered by a general demurrer and general denial. This is a sufficient statement of the pleadings, since no question of pleading is raised.

The facts may be stated substantially as follows:

Appellee was an employé of C. Flanagan & Sons, who was a subscriber under the terms of the Employers' Liability Act of this state (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91), and appellant was the insurance company that carried the policy which covered the appellee.

Appellee was injured on March 5, 1924, while in the course of his employment, and appellant paid him compensation for a period of 11 weeks at the rate of $20 per week, but refused to pay him any more. Thereupon appellee filed his claim with the board, claiming total permanent disability, and on September 11, 1924, the board made its award, by which appellee was allowed compensation for a period of 17 weeks from March 12, 1924. Appellee was not satisfied with the award, and, as we hold, gave due and proper notice to all parties concerned that he would not abide by it, and on September 22d, 11 days after the award was made, filed this suit to set it aside.

Upon trial before the court without a jury judgment was rendered in favor of appellees for $780 in a lump sum, and appellant has duly prosecuted this appeal, and advances some 10 assignments of error, with as many propositions, for reversal.

The first contention is, in substance, that the trial court was in error in admitting in evidence what purports to be a written acceptance by appellant's general agent, R. A. Morris, in the city of Beaumont, of a written notice given him as such agent by one of the attorneys for appellee that appellee would not abide by the award of the board, and that he would in due time file suit to set it aside. This acceptance of notice was dated September 16, 1924, just 6 days after the board made its award, and purports to have been signed by R. A. Morris in his capacity as general agent for appellant. The bill in this connection states that appellant objected to the introduction in evidence of this purported acceptance of notice, "because" there was nothing in evidence to show that R. A. Morris was appellant's agent, and "because" there was nothing in evidence to show that Morris signed the purported acceptance of notice. The trial court allowed the bill, but it is clear that the bill does not state, as a fact, that there was no evidence in the record that Mr. Morris was appellant's agent, nor does the bill state as a fact that there was nothing in the evidence to show that Mr. Morris signed the acceptance of notice. The bill simply shows the grounds upon which counsel for appellant objected to the introduction of this paper. There is quite a difference between a statement of appellant's grounds of objection and a statement of a fact by the court as to the existence of such grounds.

The first five propositions presented by counsel for appellant in their brief are based upon bills of exception like this, and we dispose of them all in like manner. And the tenth proposition is based upon an assignment that the trial court was in error in permitting the introduction in evidence of what purported to be a written notice served by the sheriff of Travis county, Tex., upon the secretary of the Industrial Accident Board that appellee would not be bound by that board's award, and that he would file suit within due time to set it aside. Appellant's objection to this purported service by the sheriff was because there was nothing in evidence to show that the man who signed this instrument was, in fact, the sheriff of Travis county, Tex., or that, if he was, there was nothing in evidence to show that he, in fact, served and signed this instrument. This bill of exception, like the first five, does not disclose any error, and, as we stated in disposing of the first proposition, the bill in this connection simply states that the testimony objected to was objected to on certain grounds. It was not an affirmation or statement of fact by the court approving the bill that the claimed grounds, in fact, existed. Rankin v. Rankin (Tex. Civ. App.) 134 S. W. 392; Ward v. Cameron, 97 Tex. 472, 80 S. W. 69; Terrell v. McCown, 91 Tex. 241, 43 S. W. 2; Whitaker v. Gee, 61 Tex. 218; Henry v. Whitaker, 82 Tex. 8, 17 S. W. 509; Hurd v. Brewing (Tex. Civ. App.) 51 S. W. 885; Wright v. State, 36 Tex. Cr. R. 35, 35 S. W. 287; Norsworthy v. State (Tex. Cr. App.) 77 S. W. 805.

By the sixth, seventh, eighth, and ninth propositions counsel for appellant make the contention that the amount awarded the appellee was grossly excessive, contending as they do that appellee was paid in full for all injuries that were sustained by him. As we have stated above, he was compensated by appellant for a period of 11 weeks at the rate of $20 per week, which was the proper rate, and at the end of that period appellant declined to pay appellee any further compensation, claiming that he had wholly recovered from his injuries. As bearing upon these several propositions, we will state in a general way what the testimony was.

Appellee testified, in substance, that he was working on one of the wharfs in the city of Beaumont, handling cross-ties that were to be loaded upon a ship or vessel by Flanagan & Sons, who were contracting stevedores; that appellee was a longshoreman, and he...