Standard Acc. Ins. Co. v. Williams

• Decision Date: 14 March 1928
• Docket Number: (No. 2980.)
• Citation: 4 S.W.2d 1023
• Parties: STANDARD ACC. INS. CO. v. WILLIAMS.
• Court: Texas Court of Appeals

4 S.W.2d 1023

STANDARD ACC. INS. CO. v. WILLIAMS.

(No. 2980.)

Court of Civil Appeals of Texas. Amarillo.

March 14, 1928.

Rehearing Denied April 11, 1928.

Appeal from District Court, Dallas County; Claude McCallum, Judge.

Proceeding under the Workmen's Compensation Act by Albert L. Williams, claimant, opposed by Love & Bracewell, employers, and the Standard Accident Company, insurer. Compensation was ordered, but an award of the Industrial Accident Board terminated compensation after a certain date, and the claimant filed a suit, basing his action on an appeal from the award. From a judgment for the claimant, the insurer appeals. Affirmed.

Touchstone, Wright, Gormley & Price, of Dallas, for appellant.

Marvin B. Simpson, Leo Brewster, and Frank H. Rawlings, all of Fort Worth, for appellee.

HALL, C. J.

The appellee, Williams, filed this suit, alleging that his cause of action was an appeal from an award of the Industrial Accident Board in the case of Albert L. Williams, Employee, v. Love & Bracewell, Employers, and the Standard Accident Insurance Company, Insurer. He further alleged that on or about July 6, 1925, while in the employ of Love & Bracewell, as a journeyman painter and paper hanger, earning an average weekly wage of $48 per week, and while he was in the regular course of his employment in Dallas, on or about said date, he, by accidental means, sustained injuries which he describes as a fracture of the left arm in and near the shoulder joint, a destruction of the nervous system of the left arm, hand, and shoulder joint, a fracture of the elbow of the left arm, and bruises, lacerations, and separation of the muscles and ligaments of his back, spine, and kidneys; that, as a result of these injuries, he continuously suffered pain; and had become, and would continue to be, totally and permanently disabled and incapable of performing any duties of a gainful and useful occupation.

He alleges that his employers were subscribers under the Texas Workmen's Compensation Act (Vernon's Ann. Civ. St. 1925, arts. 8306-8309), at the time of his injuries, and that they were insured under a policy of insurance issued by the appellant. He alleges further that within the prescribed time he notified the Industrial Accident Board of his injuries, etc.; that said board made an order that appellant pay appellee the sum of $20 per week as compensation; that said sum was paid up to and including May 25, 1926, at which time the board, upon application of the appellant, made an award to the effect that the former total incapacity of appellee had terminated, and decreed that, when all compensation was paid up to said date, the appellant should not be under further liability on account of said claim. He alleged that within the time prescribed by law he gave notice to the board and his employers that he would not abide by the last decree and award, and that he would appeal from said award, in accordance with the provisions of the Workmen's Compensation Law.

No question is made upon the sufficiency of the petition, and no additional statement will be made further than to say that, in the alternative, he pleaded that, if it be found that he is mistaken in his allegations to the effect that he is totally and permanently disabled, then he alleges that he is permanently partially disabled.

The case was tried to a jury, resulting in a finding that the appellee was permanently, totally incapacitated, and that the payment of the compensation to him in weekly installments would result in a manifest hardship and injury to him.

The appellee has filed a motion to strike the appellant's bills of exception numbered from 1 to 24 and from 25 to 54, urging numerous grounds, and, in a general way, insisting that said bills are insufficient. Reference to appellant's brief shows that only a few assignments of error are predicated upon these bills. We will therefore, in considering the assignments, discuss the sufficiency of the bills of exception when any assignment based on any such bill is under consideration.

The appellant has grouped the first eight propositions. The practice of grouping propositions, when they relate to the same error, is commendable, but the propositions urged under the second, third, and fourth assignments of error, which are also grouped, relate to widely different matters.

Assignment of error No. 2 is that the court erred in submitting special issue No. 1, in which was submitted the question as to whether or not the plaintiff had sustained total permanent disability, because there was no testimony whatever to justify the submission of said issue.

The assignment of error No. 3 is that the finding of the jury, in response to special issue No. 1, that plaintiff was totally and permanently disabled, was not supported by any testimony whatsoever.

Assignment of error No. 4 is that the court erred in submitting special issue No. 2 because it was multifarious and duplicitous, and combined and confused two separate and distinct questions of fact capable of being answered differently,

The first proposition challenges the action of the court in submitting special issue No. 1, because appellee failed to produce any competent evidence showing, or tending to show, that he had been both totally and permanently incapacitated, within the statutory purview of these terms. This proposition is germane to the second and third assignments of error, but we think there is evidence which tends to show such incapacity, and the court therefore properly submitted special issue No. 1.

The second proposition under these three assignments which appellant has grouped is that it had the statutory right to have the totality of the alleged incapacitation of appellee submitted to the jury separately and distinctly from the issue of the alleged permanency of said incapacity, and having in due season, asserted that right, the action of the trial court in submitting said duplicitous issue was highly prejudicial to appellant. A sufficient answer to this proposition is that appellant has not, by any assignment of error, attacked special issue No. 1 as being duplicitous. By assignment of error No. 4, appellant attacks special issue No. 2 as being multifarious and duplicitous, but there is no assignment to which our attention has been called which attacks special issue No. 1 for that reason.

In considering propositions urged in the brief, this court is confined to propositions based upon and germane to some assignment of error appearing in the record and brought forward in the brief. Columbian National Fire Insurance Co. v. Dixie Co-op. Mail Order House (Tex. Com. App.) 276 S. W. 219. The proposition that the first special issue is duplicitous must be overruled, because there is no assignment of error in the record attacking that issue upon such ground. San Antonio Machine & Supply Co. v. Allen (Tex. Civ. App.) 279 S. W. 493.

By the third proposition, it is insisted that the appellant had the statutory right to have a concise and correct definition of the term "total incapacity" given to the jury in connection with the submission of issue No. 1, and, having timely objected to the interpolation of the clause, "or reduced to a negligible amount," in the definition submitted, the refusal of the trial court to exorcise said offending clause was highly prejudicial. This proposition is not germane to either of the assignments grouped in the brief, and, according to the authorities just cited, cannot be considered.

The fourth proposition is that, the appellant having a statutory right to have the jury answer the special issues submitted independently of the legal effect of their answers, the trial court wrongfully prejudiced this right by advising the jury, over the protest of appellant, that, if they answered special issue No. 1 affirmatively, they need not answer the following issue. This proposition is certainly not germane to either of the assignments under which it has been briefed, nor is it germane to any other assignment to which we have been referred. It is our opinion, however, that the objection urged should not be sustained. An instruction by the court that, if the jury should answer an issue submitted in a certain way, then they need not answer any subsequent issue or issues, does not inform the jury what the result of their answer will be. It is the uniform practice of the courts to submit issues in this manner, and, in the interest of clarity, and to avoid confusion in having numerous issues, which may prove to be immaterial, answered, we think this proposition, if properly submitted, should be overruled.

We think there was competent evidence before the jury tending to prove that appellee was totally incapacitated by his alleged injury, and the court did not err in submitting the issue of total incapacity.

The act of the court in submitting such issue is attacked upon the ground that it violates sections 13 and 19 of the Bill of Rights. These sections of the Constitution have no application whatever to the error complained of here. The fifth proposition is therefore overruled.

The sixth proposition is, in effect, that the appellant had the statutory right to have the issue of total incapacity and permanent incapacity submitted to the jury separately, and that the action of the trial court in submitting special issue No. 1, over the timely objection of appellant that it was duplicitous and deprived it of its statutory right in the premises, also denied appellant his rights under sections 13 and 19 of the Bill of Rights. The trouble with this proposition is that it is not based upon any assignment of error attacking special issue No. 1 as being duplicitous.

The failure of the court to eliminate from the definition of total incapacity the words, "or reduced to a negligible amount," does not violate the due process of law provisions of the Constitution, nor does the action of the court in advising the jury that, if they answered...