Texas Emp. Ins. Ass'n v. Price, 3490

Decision Date29 April 1960
Docket NumberNo. 3490,3490
Citation336 S.W.2d 304
PartiesTEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Loyal Grant PRICE, Jr., Appellee.
CourtTexas Court of Appeals

Morris, Underwood & Oldham, Houston, for appellant.

Jim S. Phelps, Houston, for appellee.

COLLINGS, Justice.

Loyal Grant Price brought suit on January 28, 1958, to set aside an award of the Industrial Accident Board dated January 15, 1958. In December, 1958, at the time of trial, plaintiff filed a second amended original petition seeking to set aside such award and also to set aside another award dated August 11, 1958. The defendant Texas Employers' Insurance Association answered by general denial and specifically pleaded that plaintiff's alleged injury did not result in total or permanent incapacity, but that any injury plaintiff may have received resulted only in partial and temporary incapacity, or resulted from other injuries and diseases or a combination thereof. The defendant also denied under oath that plaintiff gave notice of his injury within the time required by law.

The case was tried before a jury which found that plaintiff received an accidental injury while working for the Port Houston Iron Works, Inc.; that such injury occurred on October 15, 1957; that such injury was the producing cause of total disability; that total disability began November 27, 1957; that such disability was permanent and was not partial; that failure to pay compensation in a lump sum would cause manifest hardship and injustice to plaintiff; that defendant had notice of the injuries sustained by plaintiff; that after having such notice defendant failed to furnish medical and hospital services within a reasonable time; that an expense of $967.25 was reasonably and necessarily incurred by the plaintiff as a result of his injuries. Other issues were not answered by the jury because of instructions in the charge. Judgment was entered for the plaintiff for $13,415.96 in a lump sum with interest thereon at the legal rate. The defendant filed motions for judgment non obstante veredicto, for new trial and an amended motion for new trial which were timely submitted to the court and overruled. Texas Employers' Insurance Association has appealed, attacking the jurisdiction of the trial court, the amount of the verdict as greatly exceeding the amount authorized by the undisputed evidence, the failure of the court to submit material issues of fact, and prejudicial jury misconduct.

Appellee's petition contained the following allegation: 'Plaintiff further alleges that plaintiff is legally entitled to file and maintain this suit in this court because prior to the filing of this suit plaintiff has fully complied with all requirements of Texas Workmen's Compensation Act.' Appellant contends in point number 5 that the above quoted language does not amount to an allegation that appellee gave notice of injury, filed claim for compensation and gave notice of intention not to abide by the award; that appellant was therefore not required to deny the existence of such facts under oath, and that since appellee did not establish same, as required by Article 8307, Sections 4a and 5, Vernon's Ann.Texas Civ.St., the trial court had no jurisdiction to try the case. We cannot agree with this contention. Appellee alleged compliance with 'all requirements of the Texas Workmen's Compensation Act.' This constituted a general allegation of compliance with the specific steps required by the act. Such facts, concerning which appellant made no verified denial, are presumed to be true as pleaded. Rule 93(n), T.R.C.P. Actually the allegation was the pleading of legal conclusions. The pleading of a legal conclusion is permitted if the pleader's adversary is not mislead thereby. Rule 45, V.T.R.C.P.; Hankey v. Employers' Casualty Co., Tex.Civ.App., 176 S.W.2d 357; Clary & Sons Plumbing and Heating v. Local Trademarks, Tex.Civ.App., 250 S.W.2d 916; Alexander v. Byrd, Tex.Civ.App., 309 S.W.2d 952. Particularly is this true in the absence of special exceptions to the pleading. Greenfeld v. San Jacinto Insurance Co., Tex.Civ.App., 319 S.W.2d 134; Heaton v. Bristol, Tex.Civ.App., 317 S.W.2d 86 (Writ Ref.); Blackstock v. Gribble, Tex.Civ.App., 312 S.W.2d 289 (Ref. N.R.E.). The jurisdictional requirements of the Texas Workmen's Compensation Act are so well known to the bar of this state that we have no apprehension of an adversary insurance company being mislead by a general allegation such as the one here involved.

As an alternative to point number 5 it is contended by appellant in its point number 6 that the trial court had no jurisdiction to try the case because appellee Price failed to establish by proof and jury findings that he gave notice of his injury, or that his employers had notice thereof within 30 days after it occurred, when appellant had by sworn pleading alleged that no such notice was given or received. There was ample evidence to the effect that on the day appellee was knocked off a scaffold and received the injuries complained of, both Mr. Gary, the superintendent, or yard foreman, on the job for appellee's employer, and Mr. Jackson, appellee's immediate supervisor, had actual notice that appellee was injured. Appellee testified that he reported his injury to such representatives of his employer on the same day that he was injured. There is a conflict in the testimony as to the nature of the accidental injury received by appellant and when it occurred, but the accident for which appellee seeks to recover described by the testimony of appellee and his witnesses and that described by appellee's immediate supervisor, Mr. Jackson, are obviously one and the same. It was the accidental injury which occurred when appellee was working for his employer Port Houston Iron Works as a boiler maker on a scaffold about six feet high, putting the knuckleplate on a barge, and was hit on the forehead with a sledge hammer when it bounced back and struck him. Appellee and other witnesses say that when he was hit with the hammer he fell off the scaffold. The jury found that appellee received this injury on October 15, 1957. The jury found that appellant had notice of such accidental injury. There was ample evidence showing that appellee's employer did have notice of such injury on the same day that it occurred through Mr. Jackson and Mr. Gary. The evidence was to the effect that such notice was given on the same day the injury occurred which was obviously within the required time limit. It is held that timely notice to a foreman on the job is sufficient notice to the employer and to the insurer. Aetna Life Ins. Co. v. Harris, Tex.Civ.App., 83 S.W.2d 1087; Texas Indemnity Insurance Co. v. Arant, Tex.Civ.App., 171 S.W.2d 915 (Ref. W.O.M.). Appellant's point number six is overruled.

In appellant's first four points it is contended that there was no evidence, and in the alternative that the evidence was insufficient to support the findings that any total incapacity sustained by appellee was permanent and the finding that appellee sustained total and permanent incapacity was so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Appellant also contends that there was no evidence to support the finding that appellee did not sustain a partial incapacity following his injury. The evidence bearing upon the extent and duration of appellee's incapacity came from appellee and his witness, Dr. Harold J. Brelsford. Appellee Price testified that he was 30 years of age, was a welder and fitter by trade and had worked for Port Houston Iron Works about eight months during 1957. He testified that on October 15th or 16th, 1957, while he was working on a scaffold and hammering a wedge for his employer the sledge hammer bounced back and hit him in the face, bruising him and causing him to fall off the scaffold some six or seven feet to the ground below and that as a result of the fall his back was hurt. Appellee testified that after being taken to an aid station and receiving treatment of his mouth and nose, which had been hit by the hammer, he resumed work for the rest of the day but was given an easier job, and that he told Mr. Jackson at the time that his back was hurting. He continued work for his employer on his regular job until November 7, 1957, when he was laid off. He testified that during this time his back hurt him increasingly but he thought he would get better and did not thereafter mention his back trouble to anyone connected with his employer. After being laid off on November 7, 1957, appellee was without work one day and on November 8, 1957, began work as a welder for Wilson Foundry and Machine Works. He continued to work until he went to see Dr. Harold J. Brelsford on November 27, 1957. He remained under the doctor's care thereafter and on January 20, 1958, he had an appreciable change for the worse. On January 27, 1958, he was having severe pain in his left leg and was unable to do any kind of work. On January 28, 1958, appellee was placed in a hospital where he remained until February 3, 1958, when Dr. Brelsford performed a laminectomy which confirmed the doctor's diagnosis that appellee had a herniated disc. The doctor testified that the operation was a major one; that he removed slightly less than one-fourth of the injured disc and that appellee continued in the hospital until he was discharged on February 8, 1958. Appellee testified that his back felt good the first week or two after the operation but that might have been because he was still under the influence of medicine and had not started moving or walking around. He stated that after that his back began to...

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