Southern Underwriters v. Dykes

• Decision Date: 09 December 1940
• Docket Number: No. 5229.,5229.
• Citation: 145 S.W.2d 1105
• Parties: SOUTHERN UNDERWRITERS v. DYKES et al.
• Court: Texas Court of Appeals

145 S.W.2d 1105

SOUTHERN UNDERWRITERS v. DYKES et al.

No. 5229.

Court of Civil Appeals of Texas. Amarillo.

December 9, 1940.

Error from District Court, Gray County; W. R. Ewing, Judge.

Suit under the Workmen's Compensation Act by Mrs. C. S. Dykes, individually and as next friend for Betty Joe Estes, a minor, and others, to set aside an award of the Industrial Accident Board in favor of the Southern Underwriters. From a judgment granting relief, defendant appeals by writ of error.

Reversed and remanded.

Will R. Saunders, of Dallas, and Simpson, Dorenfield & Fullingim, of Amarillo (Henry D. Akin, of Dallas, of counsel), for plaintiff in error.

S. D. Stennis and John V. Osborne, both of Pampa, for defendants in error.

JACKSON, Chief Justice.

This is an appeal by writ of error from a judgment in a compensation suit in which the defendants in error, Mrs. C. S. Dykes individually and as next friend for Betty Joe Estes, a minor, Claudia Dykes, now the wife of Johnnie Cole, Doris Dykes, now the wife of Billie Cornwell, Ona Fay Estes, now the wife of Frank Kirby, whom we will hereafter call appellees, secured an order setting aside an adverse award by the Industrial Accident Board and recovered the sum of $1,932 on a compensation policy issued to the Llano Construction Company by the Southern Underwriters, the plaintiff in error, which we will hereafter designate as appellant.

The appellees are beneficiaries of C. S. Dykes, deceased, under the Workmen's Compensation Act and alleged that on the 13th day of August, 1935, while acting in the course of his employment for the Llano Construction Company, C. S. Dykes received severe internal and external injuries from which he died on March 23, 1937.

The appellant answered by general demurrer, special exceptions and general denial.

The questions on which this appeal is predicated will sufficiently appear from the findings of the jury, the assignments of error and our discussion thereof.

On special issues submitted by the court the jury found in effect that the appellant on August 13, 1935, had an outstanding policy of compensation insurance covering the employees of the Llano Construction Company; that C. S. Dykes sustained personal injuries while assisting in carrying two joints of four-inch pipe, was an employee of the Llano Construction Company, sustained injuries in the course of his employment, which were a procuring cause of his death; that his death was not solely caused by disease nor by an attack of influenza in 1937, was not solely due to pyorrhea, prostatitis, nor a combination of the effects of pyorrhea, prostatitis and influenza; that it was not due solely to heart failure nor solely to natural causes.

On these findings judgment was rendered for appellees and the amount thereof distributed among them and from the judgment this appeal is prosecuted.

The appellant assails as error the action of the trial court in overruling its general demurrer because the petition is insufficient to state a cause of action and the allegation charging that the deceased suffered severe internal and external injuries are but conclusions of the pleader.

The appellees, after stating the date and place of the injury and that the deceased with three other employees was carrying a heavy joint of pipe, allege that the other employees unexpectedly dropped their end of the pipe throwing the entire weight thereof on the deceased, and by this unexpected and accidental event the pipe crushed him to the ground "causing various severe internal and external injuries from which and as a proximate result of which the said C. S. Dykes on the 23rd day of March, 1937, died." There is no other allegation relative to the injuries suffered, no further description or suggestion as to the character, severity, kind or location of the injuries and the appellant under its general demurrer insists that the allegation in the petition is only a conclusion.

The contention that the allegation attacked by the demurrer is a conclusion of the pleader is obviously correct.

In Whatley v. Cato Oil Co., Inc., et al., Tex.Civ.App., 115 S.W.2d 1205, 1208, it is said: "There is some confusion in the decisions relative to conclusions which are subject to general exceptions, but the opinion of the Supreme Court in Garza et al. v. Kenedy et al., 299 S.W. 231, 233, contains the latest expression we have found thereon and the rule is said to be: `In testing the sufficiency of a petition by a general demurrer, much liberality is indulged by the courts, even though much of the pleading is made up of what is generally termed "conclusions of the pleader," drawn from the facts not revealed. Yet, such a defect in pleading can only be reached by special demurrer against that defect and cannot be reached by general demurrer.' This holding is followed in Hanson et al. v. Pratt, Tex.Civ.App., 51 S.W.2d 629; Arkansas Drilling Co. et al. v. Burma Oil & Gas Co. et al., Tex.Civ.App., 68 S.W.2d 336, and Fagan v. Wadel-Connally Hardware Co., Tex.Civ.App., 89 S.W.2d 1080."

In view of the holding of the Supreme Court the general demurrer is overruled.

The appellant directs a special exception to the portion of the paragraph of the petition quoted above attacking the allegation that the deceased suffered internal and external injuries from which he died for the reason that such allegation is indefinite, uncertain, failed to state any particular internal injuries or any particular external injuries suffered by the deceased; that the appellant was not advised of the nature or character of any injury or injuries nor what appellees would attempt to prove, and such allegation is only the conclusion of the pleader.

In Texas Employers' Ins. Ass'n v. Downing, Tex.Civ.App., 218 S.W. 112, 115, in an opinion by Judge Boyce, writ of error denied, the insufficiency of the allegation of injuries was considered and decided. The complainant in that case after alleging the other elements of the cause of action stated: "That while dragging a piece of ice, weighing about 300 pounds, down an incline he slipped and fell down such incline, and the piece of ice slid down against him, and so crushed him that he has been totally and permanently disabled." This allegation was attacked by special exceptions because it did not inform the defendant of the character and extent of the injury to any particular part of the claimant's body and the court said: "We think the court should have sustained the special demurrers."

See also Norwich Union Indemnity Co. v. Wilson et al., Tex.Civ.App., 17 S.W.2d 68; Wall et al. v. Royal Indemnity Co., Tex.Civ.App., 299 S.W. 319; Traders & General Ins. Co. v. Marrable, Tex.Civ.App., 126 S.W.2d 746; Bluitt et al. v. Pearson et al., 117 Tex. 467, 7 S.W.2d 524; Baker v. Hahn, Tex.Civ.App., 161 S.W. 443.

In Houston Electric Co. v. McDade, 34 Tex.Civ.App. 497, 79 S.W. 100, writ refused, plaintiff alleged that she had been thrown to the ground violently; that her spine was dislocated, her shoulder and arm, hip and leg bruised and injured, "and, in fact, greatly injuring and wounding plaintiff's entire body, and injuring plaintiff internally." In considering the admissibility of testimony under this allegation of internal injury, the court said: "It is clear that a special exception to the allegation of internal injuries would have required plaintiff to state more definitely what were the internal injuries claimed to have been received by her, and we think it equally clear that the allegation unexpected to was sufficient to admit proof of injury to her womb."

In Magill et al. v. McCamley, Tex.Civ. App., 182 S.W. 22, 23, writ refused, the court, in passing upon a special exception directed at the pleading because no facts were given upon which the conclusions stated in the allegation were based, held: "It is elementary that an allegation or averment of a legal conclusion, when no facts are stated from which such conclusion can be drawn, is insufficient pleading."

The purpose of a special exception is to require the plaintiff to state more fully, clearly and specifically the facts that constitute the cause of action so the court may understand and submit to the jury the issues presented by the pleading and the testimony and the defendant may properly prepare for trial and guard against surprise. The appellees contend that inasmuch as there had been a previous trial of the case the appellant was apprised of the proof to be offered. This assertion is followed by the argument that appellees did not know and could not state more specifically the internal or external injuries. Certainly if appellant was advised by the former trial what the testimony would be, the appellees were informed by the same testimony the particular injuries on which they would rely for a recovery. However, the court judicially knows that the testimony in a second trial frequently varies so much from the facts presented by the testimony on a previous trial that the litigant should not be deprived of the fact allegations upon which the adverse party depends at the second trial. The appellees claim that this proceeding is statutory and the same certainty is not required as is demanded in a common law action; also that the rule is more liberal to beneficiaries seeking to recover for the death of an employee than to the employee in a suit for compensation for injury. The pleading in a compensation suit is construed liberally but the sufficiency of plaintiff's petition in such a suit is largely determined by the general rules of good pleading. 45 Tex.Jur. 802, para. 293.

Article 8306, Section 16 of the Workmen's Compensation Act, Vernon's Annotated Texas Civil Statutes, provides: "In all cases of injury resulting in death, where such injury was sustained in the course of employment, cause of action shall survive."

It is not a separate cause of action which survives but the same cause of action that accrued to the employee survives to the beneficiaries....