Southern Underwriters v. Boswell

• Decision Date: 03 May 1940
• Docket Number: No. 14085.,14085.
• Parties: SOUTHERN UNDERWRITERS et al. v. BOSWELL.
• Court: Texas Court of Appeals

Page 442

141 S.W.2d 442

SOUTHERN UNDERWRITERS et al. v. BOSWELL.

No. 14085.

Court of Civil Appeals of Texas. Fort Worth.

May 3, 1940.

Rehearing Denied June 7, 1940.

COPYRIGHT MATERIAL OMITTED

Error from District Court, Wichita County; Allan D. Montgomery, Judge.

Suit under the Workmen's Compensation Act by R. D. Boswell against the Southern Underwriters and United Employers Casualty Company to set aside an award of the Industrial Accident Board, and to recover compensation for injuries sustained while employed by the Jennings Drilling Company. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Bullington, Humphrey & King, of Wichita Falls, and Will R. Saunders and Henrey D. Akin, both of Dallas, for plaintiffs in error.

Gillen, Francis & Gallagher, of Dallas, for defendant in error.

SPEER, Justice.

This is a workmen's compensation case: Plaintiff, R. D. Boswell, instituted this suit against Southern Underwriters and United Employers Casualty Company, to which we shall hereinafter refer as defendants, to set aside an award of the Industrial Accident Board, and to recover compensation for injuries alleged to have been sustained, while in the course of his employment for Jennings Drilling Company.

Plaintiff's petition contains all necessary jurisdictional allegations; that on July 30th, 1938, the employer was engaged in operating oil well drilling equipment and was a subscriber under the Workmen's Compensation Act; that defendants were the carriers of insurance under which plaintiff was protected and that on the date mentioned he received an injury. The petition describes the nature of the work being done by plaintiff at the time of the injury and that while in a forward, stooping position, fixing equipment to break down a pipe that was being drawn from a well, another employee, who weighed 180 pounds, fell out of the derrick, a distance of about 80 or 85 feet, and struck plaintiff on his neck and back, crushing him to the floor, resulting in serious and permanent injuries to his head, neck, back and hips, in the region of the sacrum.

Allegations were made that plaintiff was 42 years of age, previous to his injuries was in good health, strong and able to and did perform hard labor. That subsequent to receiving the injuries he was unable to work or do any kind of hard labor; that his injuries were permanent and that he was totally disabled to perform hard labor for the rest of his life.

The petition declares that plaintiff was earning $6.50 per day when injured and that his average weekly wage for a year next previous to receiving the injury was $37.50. He plead alternatively facts entitling him to recover compensation, under each subdivisions 1, 2 and 3 of Section 1, Article 8309, V.T.C.S. He alleged that since he was injured, his debts had accrued to the extent of $375; that he had a wife and two children to support; that the maximum compensation of $20 per week would not pay his debts and support his family. He plead facts entitling him to a lump sum settlement and that he had employed lawyers to assist him in collecting compensation. Prayer was that the award of the Board be set aside and that he be given judgment for the maximum sum of $20 per week for 400 weeks, and that payment be required in a lump sum.

Defendants answered by general denial and a special plea that if plaintiff was suffering from any disabilities, they were produced by causes other than injuries sustained on July 30th, 1938, and are not compensable under the Workmen's Compensation Act.

Trial was had to a jury on special issues. The verdict was favorable to plaintiff. A motion was made by plaintiff for the court to disregard the jury's answers to special issues 13 and 14, because there was no evidence to support either, and that having so disregarded said answers, to enter judgment for plaintiff non obstante veredicto upon the remainder of the verdict. The answers to special issues requested by plaintiff to be disregarded were referable to plaintiff's average weekly wage rate, based on subdivision 1 of Section 1, Article 8309, supra, and the amount found by the jury as his average daily earnings during the preceding year. Plaintiff's motion, the notice thereon and the hearing by the court, are in compliance with Article 2211, V.T.C.S., as construed by the Supreme Court in Myers et al. v. Crenshaw et al., 137 S.W.2d 7. The motion was sustained by the court (to which action no complaint is made by defendants) and judgment was entered, setting aside the award of the accident board, declaring this a special case, in which a lump sum payment should be made, and the amount so awarded divided, two-thirds to plaintiff and one-third to his attorneys. Motion for new trial by defendants was overruled and appeal perfected to this court by writ of error and supersedeas bond.

Special issue No. 1 is the object of defendants' first and second propositions relied upon for reversal. That issue reads: "Do you find from a preponderance of the evidence that on the 30th day of July, 1938, the plaintiff R. D. Boswell sustained an injury to his body when he was struck by a man falling out of the derrick, while working for Jennings Drilling Company?" The answer was: "Yes." Following the inquiry we find in the charge a proper definition of the term "injury".

The answer to special issue No. 2 found that Boswell was in the course of his employment with the drilling company when injured.

The two propositions urged by defendants are: (1) the first special issue is too general, speculative and is not confined to the pleadings and proof, and (2) because it is duplicitous and multifarious, and is upon the weight of the evidence, in that it assumes plaintiff did sustain an injury in the manner inquired about.

The issue standing alone is subject to some of the objections presented in the propositions. Defendants' first proposition is based upon the rule announced by this court in Federal Underwriters Exchange v. Arnold, 127 S.W.2d 972, writ dismissed, correct judgment, and authorities there cited. It is too obvious to require citation of authorities that the issue, as framed, is multifarious, in that inquiry is made, (a) did plaintiff sustain an injury, (b) was the injury caused by being struck by a man falling out of the derrick, and (c) was he working for Jennings Drilling Company (his alleged employer) when he was thus injured.

The apparent vice in the issue, as framed, is immaterial and worked no harm to defendants' rights, for the reason no fact contained in the inquiry is controverted in the testimony. We have carefully read all of the evidence, and it clearly appears that plaintiff did sustain a compensable injury on the date named, caused by a co-worker who weighed 180 pounds falling 80 or 85 feet from a derrick, striking plaintiff on the neck, shoulders and back, while he was in a stooping position, and that both men were in the course of their employment by Jennings Drilling Company. Several witnesses testified that they saw the accident; that plaintiff was knocked down on the floor, his head struck some hard object, he was unconscious for thirty minutes or more, they picked him up, bathed his face with ice water, put him in a car and took him to the hospital. He remained in the hospital about three weeks and received treatment for his injuries. It is unnecessary to speculate or theorize upon whether or not such a situation would probably produce an injury. The doctor who treated him at the hospital was introduced by defendants and he testified that plaintiff was brought to the hospital on the day the accident was supposed to have occurred; that plaintiff was suffering from the effects of the injury and that there was no question in the witness' mind that plaintiff had suffered an injury on that day; that plaintiff improved during the time he was in the hospital, but was complaining of pain when he left.

It is well settled by the decisions of our courts that there is no necessity for the court to submit an issue to the jury for determination when the facts involved are undisputed. This is a sound doctrine because in such circumstances there is no controverted fact for the jury to determine. A fact or series of facts thus indisputably established become a question of law to be applied by the court in entering his judgment. It must necessarily follow that if a court submits as an issue such an established fact, irrespective of how he submits it or how it may be answered, the judgment to be entered cannot be affected by either. The issue complained of here should not have been submitted and its erroneous wording, or its incorporating more than one inquiry of facts, worked no harm to defendant. Fidelity & Casualty Co. v. Branton, Tex.Civ.App., 70 S.W.2d 780, writ dismissed; Fidelity & Casualty Co. v. Ener, Tex.Civ.App., 97 S.W.2d 267; Southern Underwriters v. Wheeler, 132 Tex. 350, 123 S.W.2d 340; Federal Underwriters Exchange v. Bullard, Tex.Civ. App., 128 S.W.2d 126, writ dismissed, correct judgment; Foster v. Woodward, Tex. Civ.App., 134 S.W.2d 417, writ refused; Federal Surety Co. v. Smith, Tex.Com. App., 41 S.W.2d 210; Traders & General Ins. Co. v. Mills, Tex.Civ.App., 108 S.W. 2d 219, writ dismissed; Berryman v. Norfleet, Tex.Civ.App., 41 S.W.2d 722, writ refused; Royalty Indemnity Co. v. Madrigal, Tex.Civ.App., 14 S.W.2d 106; Texas Employers' Ins. Ass'n v. Russell, Tex.Civ. App., 16 S.W.2d 321, writ dismissed; Security Union Ins. Co. v. Hall, Tex.Civ. App., 37 S.W.2d 811; Daniels v. Starnes, Tex.Civ.App., 61 S.W.2d 548, writ dismissed; Associated Indemnity Corp. v. Baker, Tex.Civ.App., 76 S.W.2d 153, writ dismissed. Propositions based upon the submission of the first special issue are overruled.

Third and fourth propositions complain of special issue No. 7, which reads: "Do you find from a preponderance of the evidence that plaintiff R. D. Boswell has or will suffer partial incapacity to labor as a result of the...