Southern Underwriters v. Yocham

• Decision Date: 28 March 1940
• Docket Number: No. 3931.,3931.
• Parties: SOUTHERN UNDERWRITERS v. YOCHAM.
• Court: Texas Court of Appeals

140 S.W.2d 341

SOUTHERN UNDERWRITERS v. YOCHAM.

No. 3931.

Court of Civil Appeals of Texas. El Paso.

March 28, 1940.

Rehearing Denied May 16, 1940.

Error from District Court, Val Verde County; Brian Montague, Judge.

Suit under the Workmen's Compensation Act by Grover Yocham to set aside an award of the Industrial Accident Board in favor of the Southern Underwriters. To review a judgment granting relief, the defendant brings error.

Affirmed.

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

Kerr & Gayer, of San Angelo, Roy R. Priest, of Rankin, and Douglas Newton, of Del Rio, for defendant in error.

PRICE, Chief Justice.

This suit was filed in the District Court of Val Verde County, by Grover Yocham, as plaintiff, against the Southern Underwriters, as defendant. The purpose of the action was to set aside a previous award of the Industrial Accident Board on a claim for compensation filed by the plaintiff, wherein the defendant was the insurance carrier, and to recover compensation. The trial was by jury, the submission on special issues. On the verdict a judgment was entered against the insurance carrier in the sum of $4,760. Motion for a new trial was filed in due time and overruled. Defendant in the suit duly perfected writ of error, and the case is properly before the court for review.

The parties, for convenience, will bear the designation here borne in the District Court.

The following facts are undisputed under the evidence: Plaintiff was employed as a truck driver by the Lone Star Trucking Company, and on the date of the alleged injury his employer carried a policy of workmen's compensation insurance issued by the defendant covering plaintiff as an employee.

On the 23rd day of March, 1937, plaintiff, while acting in the scope of his employment, was driving a truck for his employer, and there was an accidental collision between the truck driven by plaintiff and a truck or motor vehicle driven by another. In this collision plaintiff alleged he sustained the injuries for which compensation was sought. Established by the verdict are the following facts: That as a result of such collision plaintiff did sustain personal injuries; that as a result of such injuries total permanent incapacity was suffered by plaintiff; that plaintiff was entitled to a lump sum settlement for the compensation due him under the law; that plaintiff's compensation should be based on an average daily wage of $4.50 per day. The verdict found all material issues as raised by the pleadings and evidence in favor of the plaintiff. In all particulars the verdict is supported by the evidence, and we find the facts in accordance therewith.

In this case there is as a whole no serious or unsettled legal propositions involved. Submission was on seventeen issues with appropriate supporting issues; appropriate explanations and definitions were given by the trial court.

Defendant's exceptions to the charge occupied some thirty pages of the transcript. The motion for a new trial urged some ninety-nine grounds of error and takes up approximately fifty pages of the transcript. We shall not burden this opinion by setting forth the substance of the objections to the court's charge. Suffice it to say, they are in all substantial particulars of the same character and nature as those commented upon in the opinion in the case of Federal Underwriters Exchange v. Walker, Tex.Civ.App., 134 S.W.2d 388. Here they merit the same condemnations as were there given. Inherently and intrinsically they evince a studied effort to conceal from the trial judge any merit therein, thus seeking to inject reversible error in the case.

Defendant, by a plea sworn to as to the best of the knowledge and belief of its agent, challenged the jurisdiction of the court. Regardless of the sufficiency of this verification, the basis of the contention seems to be that the award of the Industrial Accident Board inherently shows that it was not a final award; further, that it was not affirmatively shown there was more than $500 involved. The award recites that it was made by the Board on July 7, 1937, after due notice, and it was ordered that Southern Underwriters pay Grover Yocham $13.85 per week for an indefinite period in the future, not exceeding fifty-two consecutive weeks from March 23, 1937, unless changed by subsequent award of the Board.

It is the amount claimed in the petition seeking to set aside the award that in respect to amount determines jurisdiction. Booth v. Texas Employers' Ins. Ass'n, Tex. Com.App., 123 S.W.2d 322.

The award in question here is a final one and sufficient basis for the suit to set same aside. Middlebrook v. Texas Indemnity Ins. Co., Tex.Civ.App., 112 S.W.2d 311, Supreme Court, 131 Tex. 163, 114 S.W.2d 226; Traders & General Ins. Co. v. Baker, Tex.Civ.App., 111 S.W.2d 837.

The copy of award as certified was admissible in evidence. Federal Underwriters Exchange v. Guest, Tex.Civ.App., 129 S.W.2d 708; Federal Underwriters Exchange v. Ener, Tex.Civ.App., 126 S. W.2d 769.

It is urged that plaintiff failed to show that defendant was a legal entity subject to being sued under the name of Southern Underwriters. Defendant appeared under that name and defended; it has filed a bond herein under that name. There is no merit in this contention. Beyond the shadow of a doubt, defendant was insurance carrier of plaintiff's employer.

Special issue number one was as follows: "Do you find from a preponderance of the evidence that the truck collision between the truck operated by plaintiff, Grover Yocham, and the panel truck that collided with it in Val Verde County, on or about the 23rd day of March, 1937, caused injuries to the plaintiff, Grover Yocham?"

The jury found the affirmative to this issue.

Defendant urged exception thereto, as follows: "The issue is too general, vague, indefinite and uncertain, and does not confine the jury's determination and deliberation to the particular type and character of injuries contained in the plaintiff's petition, and upon which there is proof, but permits the jury to speculate and go outside of the realm of the testimony and pleadings in this case."

This was not the only exception urged to issue No. 1. It appears among a number of other exceptions urged to this issue. In the statement here these additional grounds of objection urged are not set forth. They are as follows:

"(a) There is no evidence to support the submission of such issue to the jury "(b) There are no proper pleadings to support the submission of such issue to the jury;

"(c) The evidence is insufficient to support the submission of such issue to the jury;

"(d) The issue is multifarious and duplicitous and submits more than one fact issue in one special issue;

"(f) The issue is on the weight of the evidence in that it assumes that the collision did result in injuries to the plaintiff, Grover Yocham, and this is a controverted issue of fact.

"(g) The defendant makes the same objections to this issue as are contained in paragraph four above, without the necessity of repeating the same at this point."

Each of the special issues submitted by the court are assailed on substantially the same grounds as urged to No. 1, omitting the objection first copied above, as same appears in the submission under the proposition under consideration.

It is to be first noted that the objection fails to point out any injuries alleged as to which there is a failure of proof. In this respect it lacks certainty and clarity. In the statement the defendant is more explicit than in the objection made in the trial court. The statement endeavors to point out for this court injuries alleged, but unsustained by the proof. A careful study of the statement of facts leads us to the conclusion that there was some evidence of all of the injuries alleged by plaintiff. Under the evidence, if plaintiff sustained any injuries resulting in incapacity, they were the result of the collision between the two motor vehicles. The issue limits the injuries inquired about to those received in the collision on the 23rd day of March, 1937. This collision certainly occurred, and its nature and violence were such as to almost inevitably result in personal injury to plaintiff. In the cases of Security Mutual Casualty Co. v. Bolton, Tex.Civ.App., 84 S.W.2d 552, Traders' & General Ins. Co. v. Low, Tex.Civ.App. 74 S.W.2d 122, and Casualty Underwriters v. Lemons, Tex.Civ.App., 114 S.W.2d 333, cited by plaintiff in error in support of this assignment, the manner of the infliction of the injury was in question, as well as the nature thereof. The ordinary result of lifting sacks is not a damage to the physical structure of the body, and the natural result of the diseased heart may have caused the death. Carbon black does not necessarily result in serious eye injury. Gouging in the eye might cause a dangerous and disastrous infection. The death might or might not have been caused from inhaling carbon monoxide gas. In each of the above cases there was a result which might not have been brought about by the cause attributed in the pleading.

The question raised by the assignment has been before the courts many times, and the decisions have not in all cases been harmonious. In Southern Underwriters v. Kelly, Tex.Civ.App., 110 S.W.2d 153, the almost identical objection here urged was urged to practically the same issue. It was there held such objections were insufficient to call the trial court's attention to the error claimed. A number of authorities are cited on this point in the opinion. Application for a writ of error was dismissed by the Supreme Court.

But, as we have before stated, the only injuries under the evidence before the jury were the injuries sustained in the collision. The issue confines the jury to a consideration thereof under the evidence. All of the injuries pleaded by plaintiff were confined to the collision. Plaintiff never...