Texas Employers' Ins. Ass'n v. Arnold

• Citation: 57 S.W.2d 954
• Decision Date: 04 February 1933
• Docket Number: No. 11099.,11099.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. ARNOLD.
• Court: Texas Court of Appeals

57 S.W.2d 954

TEXAS EMPLOYERS' INS. ASS'N v. ARNOLD.

No. 11099.

Court of Civil Appeals of Texas. Dallas.

February 4, 1933.

Rehearing Denied March 11, 1933.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Suit by Jim Arnold against the Texas Employers' Insurance Association, to set aside an agreed judgment for compensation entered in favor of plaintiff. From a judgment for plaintiff, defendant appeals.

Affirmed.

Lawther, Cox & Cramer and James P. Swift, all of Dallas, for appellant.

Bailey, Nickels & Bailey, of Dallas, for appellee.

LOONEY, Justice.

Following an award of the Industrial Accident Board in favor of Jim Arnold, compensating him for incapacity resulting from injuries sustained in the course of employment with Brown Cracker & Candy Company, the Texas Employers' Insurance Association (insurer) filed suit in the district court of Dallas county to set aside the award, but later an agreed judgment was entered in favor of Arnold and his attorneys for $1,300, which was paid.

Thereafter, Arnold filed suit against appellant to set aside the agreed judgment, upon grounds of fraud and misrepresentations, alleged to have been practiced by appellant's representatives, inducing him to agree to the settlement, concluding with the prayer that the award of the board be matured; that he recover the whole of the same, with penalty and attorney's fees; and, in the alternative, that he recover judgment for 401 weeks compensation, less $1,300 paid on the agreed judgment, and further in the alternative, prayed for damages in the amount of $4,240. Thereafter, appellee urged the same cause of action in another suit against appellant filed in a district court of Dallas county, which was, by order of court, consolidated with the former.

Appellant answered by general demurrer, general denial, and pleaded the agreed settlement, in bar. Appellant's general demurrer was overruled, the case was tried to a jury, and the only issues submitted were as to the alleged misrepresentations that induced appellee to agree to the settlement. These issues being found in favor of appellee, the court rendered judgment setting aside the agreed judgment, and allowed him compensation for 401 weeks at $13.85 per week, less $1,300 theretofore paid, from which this appeal is prosecuted. The questions discussed are properly presented and briefed.

Appellant contends that the court erred in overruling its general exception to appellee's petition, because the same is lacking in essential averments, that is, (1) as to his average weekly wages, and (2) as to the nature, extent, and duration of his incapacity.

In passing upon the action of the court in overruling the demurrer, every reasonable intendment, arising upon the pleading attacked, should be indulged in favor of its sufficiency. See rule 17, District and County Courts. Wynne v. State National Bank, 82 Tex. 378, 383, 17 S. W. 918; Wiggins v. Bisso, 92 Tex. 219, 222, 47 S. W. 637, 71 Am. St. Rep. 837.

Plaintiff alleged that, at the time of the injury he was earning $24 per week (of 6 days), and for a long time continuously theretofore had been in such employment, that the value of the compensation to which he is entitled (after deducting $1,300 formerly paid) is $4,240, and prayed for the recovery of compensation for 401 weeks at the rate of $13.85 per week. As against a general demurrer, these allegations are, in our opinion, sufficient on the measure of recovery. See Davies v. Tex. Employers' Ins. Ass'n (Tex. Com. App.) 16 S.W.(2d) 524.

Appellee's allegations are also to the effect that he was injured in the course of employment, resulting in incapacity for work or service in said employment or in other classes of work or services; that the value of the compensation to which he is entitled under the compensation law is $4,240 (after deducting $1,300 formerly paid), concluding with a prayer for recovery of the maximum allowed for total permanent incapacity. These averments describe in outline and by implication a condition of total permanent incapacity, and, as to its nature, extent, and duration, are sufficient. See Tex. Employers' Ins. Ass'n v. Nunamaker (Tex. Civ. App.) 267 S. W. 749, 751; American Employers' Ins. Co. v. Scott (Tex. Civ. App.) 33 S.W.(2d) 845, 847, and authorities cited; Beal v. Texas Ind. Ins. Co. (Tex. Com. App.) 55 S.W.(2d) 801.

But if the petition be found lacking in essential averments, as to the nature, extent, and duration of appellee's incapacity, such defect was cured by allegations contained in appellant's plea in bar, to the effect that the incapacity, in respect to which appellee sued and seeks to recover under the compensation law, is total and permanent. In Davies v. Tex. Employers' Ins. Ass'n (Tex. Com. App.) 16 S.W.(2d) 524, the doctrine is announced that on general demurrer, allegations of an adversary may be looked to in aid of a pleading attacked. We therefore overrule the assignment and proposition just considered.

Appellant contends that the court erred in refusing, on request, to direct a verdict in its favor, and in rendering judgment for appellee, because of the absence of any proof showing that, within thirty days after the alleged injury, the subscriber or the association had, or was given notice thereof; because of the absence of any proof that within 6 months after the alleged injury appellee made claim to the Industrial Accident Board for compensation with respect to said injuries; because of the absence of any proof that the employer was a subscriber or that appellant was the insurer, within the terms of the compensation law.

These facts were, in our opinion, abundantly and indisputably established. The testimony of Arnold, uncontradicted, is to the effect that, immediately after being injured he complained to some of the employers at the place of business, and shortly thereafter was examined by a physician at the suggestion of the subscriber, also was examined by a physician at the suggestion of appellant, and that his claim for compensation was presented to the Industrial Accident Board. That the board made an award, that appellant gave notice of its unwillingness to abide by same, and filed suit to set it aside, to which appellee filed answer, praying judgment for total and permanent disability compensation, are facts fully and lengthily alleged by appellant in its answer to the present suit, all of which are shown to have occurred within 6 months after the injury, hence, the facts alleged will be treated as admitted and conclusively established.

A fact admitted in a pleading, on which the case is tried, is held, without other evidence, to be conclusively established for the purpose of the trial, under the doctrine of admissions against interest. Ogden v. Bosse, 86 Tex. 336, 344, 24 S. W. 798; Barrett v. Featherstone, 89 Tex. 567, 35 S. W. 11, 36 S. W. 245; H. E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 134, 70 S. W. 531, 97 Am. St. Rep. 877.

Where an employer knows of an injury to an employee and causes him to be treated by a physician, as in the case at bar, other notice to the employer or insurer is not required. Texas Employers' Ins. Ass'n v. Fricker (Tex. Civ. App.) 16 S.W.(2d)...