Texas Employers' Ins. Ass'n v. Marsden
| Decision Date | 30 March 1938 |
| Docket Number | Motion No. 13404; No. 23328. |
| Citation | 114 S.W.2d 858 |
| Parties | TEXAS EMPLOYERS' INS. ASS'N v. MARSDEN. |
| Court | Texas Supreme Court |
Suit under the Workmen's Compensation Act by the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board in favor of D. E. Marsden, employee, wherein the employee filed a demurrer and a cross-action. Judgment for the employee was affirmed by the Court of Civil Appeals, 111 S.W.2d 1138. The insurer was refused a writ of error upon original consideration, whereupon the insurer moved for a rehearing.
Motion for rehearing granted; order refusing writ of error set aside; application for writ of error dismissed for want of jurisdiction.
Lawther & Cramer and William M. Cramer, all of Dallas, for plaintiff in error.
Frank S. Roberts, of Breckenridge, for defendant in error.
This is a compensation case. Defendant in error, D. E. Marsden, was injured in the course of his employment. The Industrial Accident Board awarded him compensation on the basis of total permanent disability. Texas Employers' Insurance Association, the insurance carrier, appealed to the district court and prayed that the award be set aside. Defendant in error answered, and filed a cross-action, in which he set up claim for compensation on the basis of total permanent disability. Plaintiff in error filed no answer to the cross-action. The case was one of hernia arising in the course of employment, and the association refused to furnish an operation. In the district court the case was tried and hotly contested on the question of total permanent disability, just as if a general denial had been entered by the association. All issues which the association would have been entitled to have submitted, if it had filed a general denial, were submitted and answered by the jury, including issues concerning partial disability. Judgment was rendered in the district court in favor of the claimant on the basis of total permanent disability. The facts, as well as the findings of the jury, fully authorized such judgment. The Court of Civil Appeals affirmed the judgment of the trial court, holding that by its failure to file a general denial to defendant in error's cross-action the plaintiff in error admitted all material allegations in such cross-action; and refused to consider any of the assignments of plaintiff in error. Tex.Civ.App., 111 S.W.2d...
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...the issues determined in the case plaintiff waived any right to complain that defendant filed no answer. Texas Employers' Ins. Ass'n v. Marsden, 131 Tex. 256, 114 S.W.2d 858. Certainly, if by appearing and contesting a case, or motion, as if the case, or motion, had been duly pleaded consti......
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