Southern Underwriters v. Stubblefield, 5043.

• Decision Date: 19 June 1939
• Docket Number: No. 5043.,5043.
• Parties: SOUTHERN UNDERWRITERS v. STUBBLEFIELD.
• Court: Texas Court of Appeals

130 S.W.2d 385

SOUTHERN UNDERWRITERS v. STUBBLEFIELD.

No. 5043.

Court of Civil Appeals of Texas. Amarillo.

June 19, 1939.

Rehearing Denied July 10, 1939.

Error from District Court, Wilbarger County; C. Y. Welch, Judge.

Suit by the Southern Underwriters under the Workmen's Compensation Act to set aside an award of the Industrial Accident Board in favor of John W. Stubblefield, wherein John W. Stubblefield filed a cross-action. To review a judgment in favor of John W. Stubblefield, the Southern Underwriters bring error.

Judgment affirmed.

Henry D. Akin, Claude Williams, and Benbow, Saunders & Holliday, all of Dallas, for plaintiff in error.

Smoot & Smoot, of Wichita Falls, for defendant in error.

FOLLEY, Justice.

This is a workmen's compensation suit, this being the second appeal of this case. The first opinion is reported in Tex.Civ. App., 108 S.W.2d 557. We refer to that opinion for a statement of the basic facts which were substantially the same in both trials. To this statement we shall, in the course of this opinion, add such variations from the former record as are material to this appeal. In this second trial the claimant has offered some additional evidence in regard to his injury and there was also additional medical testimony from both parties.

The Southern Underwriters, plaintiff in error, appealed from an award of the Industrial Accident Board to the District Court of Wilbarger County, Texas, and was originally the plaintiff in the trial court. The defendant in error, John W. Stubblefield, filed his answer and cross-action seeking affirmative relief. This answer was amended twice before the first trial. After the former judgment was reversed and remanded by this court and before the second trial the Southern Underwriters filed a motion to be nonsuited without prejudice to the cross-action of Stubblefield, which motion the trial court granted. The second trial, which is now before us for review, was predicated upon the third amended original answer and cross-action of Stubblefield alleging injuries to his back, shoulder, head and jaw while in the course of his employment. Such injuries were alleged to have totally and permanently incapacitated the claimant. They were further alleged to have occurred on or about May 31, 1935, in substantially the same manner as set out in our former opinion.

In reply to this third amended answer and cross-action the Southern Underwriters filed a general demurrer and general denial and specially denied that Stubblefield gave notice of his injury within the time, manner and form prescribed by law. It further specially denied that a valid claim had been filed in the case, in that the purported claim showed upon its face that the same was not made for a sum of money sufficient to confer jurisdiction upon the district court. The answer further denied that a valid award had been made by the Industrial Accident Board in that the purported award did not show upon its face any authority from such Board nor that the same was made or acted upon by the members of the Board. The Southern Underwriters further pleaded that any sum of money paid by it to the claimant was through error.

Upon a trial before a jury the following findings were made: (1) That at the time of the accident the claimant was working for the insured employer, Sam Walton; (2) that the claimant was injured at such time by being struck by a portion of the drilling machinery in connection with which he was working; (3) that he suffered an injury to his jaws, shoulders, arm and back while in such employment; (4) that such injury was accidental; (5) that he was then engaged in the course of his employment; (6) that such injury resulted in the total incapacity of the claimant; (7) that such injury did not result in partial incapacity; (8) that the percentage of such partial incapacity was total incapacity; (9) that the incapacity of the claimant will be permanent; (10) that such incapacity will not be temporary; (11) that the claimant had worked in the employment in which he was working at the time of the injury substantially the whole of the year preceding; (12) that the average weekly wage received by the claimant during substantially the whole of the year preceding the injury was $35; (13) that fixed in the manner which seems just and fair to both parties, the average weekly wage of the claimant was $35; and (14) that manifest hardship and injustice will result to the claimant if the compensation due him is not paid in a lump sum. Upon this verdict judgment was rendered vacating the award of the Industrial Accident Board and decreeing that the claimant have and recover upon his cross-action in the sum of $7,187.77, with interest from date at 6% per annum and costs of suit. The amount of the judgment was based upon 60% of a weekly wage rate of $35, the court allowing the maximum compensation rate of $20 per week, deducting $188.60 theretofore paid to the claimant by the insurance company and the legal discount for the lump sum settlement.

In its first two propositions the insurance company attacks the jurisdiction of the trial court, asserting that the claim filed before the Industrial Accident Board did not contain a demand for any particular amount of money nor sufficient data to show an amount within the jurisdiction of the district court and that the pleadings of the claimant were not sufficient to confer jurisdiction upon the district court. The claimant's cross-action alleged facts entitling him to an award of $20 per week for 401 weeks. Therefore such petition clearly states a cause of action of which the district court had jurisdiction. As far as the claim filed with the Board is concerned we think it is immaterial to the question of jurisdiction of the trial court. In view of the holding in the case of Booth v. Texas Employers' Ins. Ass'n, Tex.Com. App., 123 S.W.2d 322, 324, these assignments must be overruled. In such case it is held: "The rule as to suits filed by an injured employee is that the amount of the claim before the Industrial Accident Board is immaterial upon the issue of jurisdiction of the court selected to review the award, the only essential jurisdictional connection between the claim for compensation before the board and the suit to set aside the award being the identity of the injury of which complaint is made."

By its third proposition the insurer assigns error on the part of the trial court in admitting in evidence the certified copy of the award of the Industrial Accident Board and assuming jurisdiction of the cause for the reason that the copy was not signed by any member of the Board nor in any way shown to be an act of a quorum of said Board. Such certified copy of the award was introduced over the certificate of the secretary of such Board and under the official seal of the Industrial Accident Board. The certificate recites that the award was a correct copy of one of record in the Department. The insurance company pleaded the award as a basis for its suit in its original petition to set the same aside and filed with its petition a certified copy of the award. Under the provisions of section 8 of article 8307 of Vernon's Annotated Civil Statutes, such certified copies are made admissible in evidence. This assignment is therefore overruled. 22 C.J. 130; 17 Tex.Jur. 278 and 281; Traders & General Ins. Co. v. Holtzclaw, Tex.Civ.App., 111 S.W.2d 759.

The insurance company's fourth proposition is to the effect that the claimant's cross-action was subject to a general demurrer because it failed to allege the names and residences of the parties to the suit and in particular failed to allege that the insurance company was such a legal entity as is capable of being sued. All the matters about which the insurance company complained in this assignment were fully set out in its pleadings originally filed in an effort to set aside the award of the Board. Although the insurance company had been allowed to take a nonsuit on these pleadings, such action was sought for by the insurer, and granted by the court, without prejudice to claimant's cross-action. It has been held that even though the plaintiff has taken a nonsuit his petition may be looked to in aid of the defendant's cross-action seeking affirmative relief. McElyea et al. v. Parker, 125 Tex. 225, 81 S.W.2d 649; Northern Texas Traction Co. v. City of Polytechnic et al., Tex.Com.App., 236 S.W. 73; Jones et al. v. Wagner, Tex.Civ.App., 141 S.W. 280, writ refused. This assignment is, therefore, without merit.

The fifth proposition of the insurer deals with the alleged insufficiency of the evidence to support the verdict and judgment establishing total and permanent disability of the claimant. We discussed the injuries of the claimant in our former opinion and we do not deem it necessary to again enter into an extended discussion of the same. The claimant testified herein substantially to the same facts as in the former trial, the only material variations in his testimony being, in effect, that at the date of the second trial his disabilities were becoming more pronounced. W. H. Culver and Bill Sorrells, fellow workmen of the claimant, who were present at the time of the accident, corroborated the testimony of the claimant as to the nature and extent of his injuries at the time the same occurred. Both of these witnesses stated that the heavy revolving handle of the hoist lever struck the claimant on the jaw, back and shoulder repeatedly, knocked out his teeth, broke his jaw, rendered him unconscious and from his bloody condition left him looking like his throat had been cut. The claimant was also corroborated as to the severity of his injuries by the testimony of his physician, Dr. Duane Meredith, who also testified in the former trial. He stated that he had examined the claimant since the date...