Standard Acc. Ins. Co. v. Simpson

• Decision Date: 16 October 1929
• Docket Number: (No. 8238.)
• Citation: 21 S.W.2d 8
• Parties: STANDARD ACC. INS. CO. v. SIMPSON.
• Court: Texas Court of Appeals

Page 8

21 S.W.2d 8

STANDARD ACC. INS. CO. v. SIMPSON.

(No. 8238.)

Court of Civil Appeals of Texas. San Antonio.

October 16, 1929.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action by Edwin Simpson against the Standard Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Eskridge & Groce, of San Antonio, for appellant.

P. H. Long and R. B. Russell, both of San Antonio, for appellee.

On Motion to Dismiss Brief.

COBBS, J.

This is an appeal from a judgment in favor of appellee against appellant for full recovery for total permanent disability under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309), ordering a lump sum compensation.

The statement of facts was filed in this court on May 2, 1929. The appellant filed his brief herein on September 12, 1929, more than four months after the record of this case was filed.

Appellee alleges that, on account of the inexcusable delay of appellant in filing his brief, his attorneys have not sufficient time for the preparation of their reply brief.

Article 2283, R. S., requires: "Not less than five days before the time of filing the transcript in the Court of Civil Appeals the appellant or plaintiff in error shall file with the clerk of the trial court a copy of his brief, which he shall deposit with the papers of the cause, with the date of filing indorsed thereon; and he shall forthwith give notice to the appellee or defendant in error, or his attorney of record, of the filing of such brief, and in twenty days after such notice the appellee or defendant in error shall file a copy of his brief with the clerk of said court below, and four copies with the clerk of the Court of Civil Appeals."

There is nothing filed herein to excuse the appellant's delay in filing the brief. S. A. & A. P. Ry. Co. v. Brock (Tex. Civ. App.) 77 S. W. 953. Of course, an appeal will not ordinarily be dismissed when it affirmatively appears that appellee was not injured thereby. E. Tex. Electric Co. v. Reagan (Tex. Civ. App.) 228 S. W. 366.

Appellee does not ask a dismissal of the appeal, but a dismissal of the brief. In such a case we are required, because no injury is specifically shown, to examine the record for fundamental error. The holding of our courts seems to be of the same effect, that is, where no injury is shown the appeal will not be dismissed, yet we are required to consider the record for fundamental error. When appellant's brief is dismissed, a burden is placed on the courts to examine the record without any assistance, which is very hard. I am merely stating the writer's opinion, in which my Associates are in no wise bound.

We have concluded not to grant the motion to dismiss the brief under the circumstances, but will consider the same. Ample time was given appellee to file a brief, and therefore no injury has resulted to him. Besides, we have advised counsel they should have ample time to file reply, but they have not availed themselves of the privilege.

We think the court erred in refusing to submit special issue No. 1, requested by defendant, to the jury: "Was plaintiff's falling into the fire which burned him due solely to a fit of epilepsy?" For the defendant had affirmatively pleaded that said injuries were occasioned solely by infirmities from which plaintiff was suffering, and were not produced by his employment. We think appellant was entitled to an affirmative submission of the pleaded defense.

And again the court erred in refusing to submit the special issue No. 2, submitted by the defendant: "Is the plaintiff at this time physically able to perform the same character of labor that he was able to perform prior to his alleged...