Southern Surety Co. v. Eppler

• Decision Date: 10 March 1930
• Docket Number: No. 7427.,7427.
• Citation: 26 S.W.2d 697
• Parties: SOUTHERN SURETY CO. v. EPPLER.
• Court: Texas Court of Appeals

Page 697

26 S.W.2d 697

SOUTHERN SURETY CO. v. EPPLER.

No. 7427.

Court of Civil Appeals of Texas. Austin.

March 10, 1930.

Rehearing Denied April 9, 1930.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Proceeding under the Workmen's Compensation Law by J. L. Eppler, claimant, opposed by the Southern Surety Company, insurance carrier. The Industrial Accident Board made an award in favor of claimant, and the insurance carrier appealed to the district court to set aside the award. From the judgment, the insurance carrier appeals.

Affirmed.

Sweet & Nabors, of Brownwood, and Horace C. Bishop, of Dallas, for appellant.

Chastain & Judkins, of Eastland, and Woodruff & Holloway, of Brownwood, for appellee.

McCLENDON, C. J.

November 7, 1926, appellee, while drilling an oil well, received an injury to his shoulder. He claimed to be an employee of Toombs, doing business under the trade-name of Toombs & Eppler, to whom appellant had issued an industrial accident policy. Appellant paid appellee $20 per week for four weeks as total disability compensation, and then declined to make further payment on the ground that Toombs & Eppler was a partnership and appellee was one of the partners. Appellee then presented the claim to the Industrial Accident Board, where an award in his favor was made. This suit was an appeal by the surety company from that award.

Appellant's first proposition, asserting want of jurisdiction in the trial court, because appellee's pleadings fail to allege that he "made claim for compensation within six months after receipt of the injuries alleged by him," we overrule on the authority of Davis v. Tex. Employers' Association (Tex. Com. App.) 16 S.W.(2d) 524, 525, and Tex. Employers' Association v. Lovett (Tex. Civ. App.) 19 S.W.(2d) 397.

We overrule appellant's second proposition attacking the sufficiency of the evidence to support the jury verdict, "in that said evidence conclusively shows that the said J. L. Eppler was a partner with the said F. H. Toombs." Toombs and Eppler both testified that the partnership was dissolved on July 31, 1926, on which date it appears Eppler made a bill of sale to Toombs covering all his interest in the partnership equipment, and on the same day this bill of sale was acknowledged and filed for record. Toombs also testified that he promptly notified the surety company's agent of this dissolution, and the agent continued thereafter to receive monthly premiums on the policy. This was not controverted. There was evidence that in 1927 contracts had been made in the partnership name by Eppler, and admissions of the partnership had been made by Eppler to third parties. Reasonable explanations of these contracts and admissions consistent with the dissolution were testified to by Eppler. If the question were one of estoppel between the alleged partnership and parties dealing upon the faith of these contracts or representations, a different question would be presented. Here, however, the question is one of the actual relations of Toombs and Eppler, of which the surety company had full knowledge. The evidence was clearly sufficient to support a finding that the partnership had been dissolved.

Appellant's third proposition complains of the trial court's refusal to sustain an objection to special issue No. 5 on the ground that it was duplicitous. This special issue inquired whether Eppler "suffered any permanent partial incapacity." In addition to this objection, appellant requested and the trial court refused two special issues, as follows:

"Are the injuries, if any, to said J. L. Eppler permanent?"

"Are the injuries, to the said J. L. Eppler, if any there are, total or partial?"

In support of this proposition, appellant cites Lumbermen's Association v. Wilmoth (Tex. Com. App.) 12 S.W.(2d) 972, and Indemnity Co. v. Campbell (Tex. Civ. App.) 19 S.W.(2d) 622.

Both of these cases hold that a single issue submitting whether an employee is "totally and permanently incapacitated" is duplicitous. In the instant case the jury had already found that Eppler was (3) totally disabled, and (4) for eight weeks, and, under special issue No. 6, they found that the extent of his permanent partial incapacity was 50 per cent. Special issue No. 5 did not embrace total incapacity. If, therefore, it was duplicitous, it was so in that it embraced the issues (1) whether Eppler was incapacitated at all, and, if so, (2) whether that incapacity was permanent. Whether Eppler was incapacitated at all was not separately submitted to the jury, and the special issues requested by appellant did not call for a finding on...