Texas Employers' Ins. Ass'n v. Adcock, 10689.

• Decision Date: 22 March 1930
• Docket Number: No. 10689.,10689.
• Citation: 27 S.W.2d 363
• Parties: TEXAS EMPLOYERS' INS. ASS'N. v. ADCOCK.
• Court: Texas Court of Appeals

27 S.W.2d 363

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

No. 10689.

Court of Civil Appeals of Texas. Dallas.

March 22, 1930.

Rehearing Denied April 19, 1930.

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

Suit by Dewey Adcock against the Texas Employers' Insurance Association to set aside an award made by the Industrial Accident Board. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Harry P. Lawther, Wm. M. Cramer and R. M. Perry, all of Dallas, for appellant.

White & Yarborough, of Dallas, for appellee.

VAUGHAN, J.

Appellee, Dewey Adcock, filed this suit to set aside an award made by the Industrial Accident Board of Texas on September 18, 1928, and for the recovery of compensation of $14.43 per week for 401 weeks in a lump sum. Appellee, in his claim for compensation before the board, stated the nature of his injury as follows: "Hernia and strained, injured, lacerated left side, etc." Appellant answered by general demurrer and general denial, and a plea of accord and satisfaction of the award made by the board. Appellee replied to appellant's answer by supplemental petition, in which he excepted to its plea of accord and satisfaction. Said plea was sustained, and appellant's attorney instructed not to read same to the jury. Following are the special issues submitted in the court's charge to, and answers made thereto by, the jury:

"No. 1. Did Dewey Adcock sustain accidental personal injury on the 11th day of April, 1928? Answer, `Yes.'

"No. 2. Was such accidental personal injury, if you any you have found, sustained in the course of plaintiff's employment with the Oldham-Sumner Lumber Co.? Answer, `Yes.'

"No. 3. Did such injury, if any found by you, sustained on the 11th day of April, 1928, naturally result in total incapacity of the said Dewey Adcock? Answer, `Yes.'

"If you have answered Special Issue No. 3 by `Yes,' then answer Special Issue No. 4; If you have answered by `No,' you need not answer special Issue No. 4.

"No. 4. Is such total incapacity, if any you have found, permanent? Answer, `Yes.'

"If you have answered special issue No. 4 by `Yes,' you need not answer special issue No. 5; but if you have answered by `No,' then answer special issue No. 5.

"No. 5. What number of weeks of total incapacity, if any, was caused to plaintiff, Dewey Adcock, by his injury, if any, sustained on April 11, 1928? Answer, giving number of weeks, if any. Answer: _____.

"No. 6. Would the payment of compensation, if any, to plaintiff in weekly installments result in manifest hardship and injustice? Answer, `Yes.'"

And following are the special issues and answers made thereto, submitted at the request of appellant:

"No. 3. Did such injury, if any, of April 11, 1928 result in hernia? Answer, `Yes.'

"No. 4. Was such hernia, if any, accompanied with pain? Answer, `Yes.'

"No. 5. Did said hernia, if any, appear suddenly and immediately after the injury, if any? Answer, `No.'

"No. 6. Did said hernia, if any, exist in any degree before said accident, if any? Answer, `No.'

"No. 7. Would it be more than ordinarily unsafe for plaintiff to submit to an operation for hernia if he has hernia? Answer, `Yes.'

"No. 8. But for such hernia, if any, would plaintiff be disabled to work, labor or earn money? Answer, `Yes.'

"No. 9. Did plaintiff sustain accidental injury on April 11, 1928 which permanently resulted in disability other than hernia? Answer, `Yes.'"

At the request of appellant, the court instructed the jury that as to certain special issues submitted at the request of appellant that "the burden of proof is upon plaintiff to establish the affirmative thereof by a preponderance of the evidence, and if they have not so established such issues, you will answer same in the negative."

The giving of this charge is not before us so as to require an affirmative ruling thereon, but in view of another trial we feel called upon to say that such a charge should not be given when a cause is submitted upon special issues, same being, when properly objected to, reversible error. I. M. Radford Groc. Co. v. Andrews (Tex. Com. App.) 15 S.W.(2d) 218; Ford v. Couch et al. (Tex. Civ. App.) 16 S.W. (2d) 869.

Upon said findings of fact by the jury, the trial court rendered judgment in favor of appellee against appellant for the sum of $4,443.95, interest and costs of suit. Appellant duly perfected its appeal from said judgment, and by appropriate assignments and propositions presents same to this court for review and revision.

The findings made by the jury in answer to the special issues submitted being based upon evidence sufficient to prevent this court from disturbing same, on the ground that the facts found were without evidence in support thereof, or so contrary to the overwhelming weight of the evidence that it would be unconscionable to permit such findings to stand; therefore, said findings are adopted as the findings of fact by this court.

Appellant, by its first proposition, viz., "It is error for the district court to strike out a defense set out in defendant's pleadings which, if true, would bar a recovery by plaintiff," challenges the correctness of the court's action in sustaining appellee's exception to and striking from the record paragraph 3 of appellant's first amended original answer, same presenting a plea of accord and satisfaction based on the following alleged facts, viz.: That on the 18th day of September, 1928, the Industrial Accident Board of the state of Texas awarded to appellee compensation for 22 weeks at the rate of $14.43 per week, and found that all of said compensation had become due and payable in the total sum of $317.46, less credit of total sum of all previous payments of compensation, if any; and further ordered that "when this award has been paid and satisfied in accordance with its terms and provisions, the said Texas Employers Insurance Association will stand fully and finally acquitted and discharged from all liability on account of this claim for compensation and it is so ordered, adjudged and decreed by said Board"; and further, that prior to said 18th day of September, 1928, appellant had paid to appellee compensation for a period of 14 weeks at $14.43 per week, and that "on the 25th day of September, 1928 in compliance with the terms of said award it delivered to claimant and his attorneys its vouchers in the following sums, to wit: One voucher for the sum of $98.13, payable to plaintiff, and one voucher for the sum of $17.31 payable to White & Yarborough, his attorneys. That said vouchers were never returned to the defendant, and were therefore accepted by the plaintiff and his attorneys." Appellee excepted to said plea on the ground "that same sets out the award of the Industrial Accident Board, and advises the jury of the contents of the Board's award, whereas this is an appeal from said award and is a trial de novo and it is improper to put same before the jury, either by pleading or testimony."

The order entered by the board, declaratory of the effect payment of its award would have, did not apply to prior payments, but only to payments thereafter in fact made, for until appellee accepted the award he had the right to refuse to abide by same, appeal therefrom, and have his right to compensation determined by a trial de novo in the district court (the court having jurisdiction of the amount of his claim for compensation), as if said award had never been made, in so far as same having any effect upon his right to recover on account of and for the injury upon which his claim for compensation was made to and passed upon by said board. We therefore hold that the court did not err in sustaining said special exception, as if a general demurrer to which said plea was subject, same not presenting any character of defense to appellee's cause of action.

By appropriate propositions, the effect of appellant's second assignment of error, namely, "the court erred in overruling defendant's objection to the introduction of the notice of the injury over the objection that same showed on its face to have been made more than 30 days after the alleged injury," the effect of its third assignment of error, namely, "the court erred in overruling the objection of defendant to the introduction of an alleged claim for compensation, because said claim shows to have been made out before the alleged accident and injury herein, and there is no pleading to reform the same," and the effect of its thirty-fifth assignment of error, namely, "the court erred in overruling defendant's objection and admitting in evidence the rubber stamp file mark of the Industrial Accident Board on the claim for compensation," is clearly presented by and arises from the one instrument, viz., appellee's claim for compensation, and centered around the one question, viz., the admission of same in evidence; therefore, we will discuss the propositions advanced under said assignments of error as presenting but one question, viz., the admissibility of such claim in evidence, for, if admissible in evidence, all propositions advanced under said three assignments must fail of accomplishing any beneficial result for appellant.

The statement of facts conclusively establishes that an award was made on the claim of appellee by the Industrial Accident Board in cause No. H-16406, Dewey Adcock, employee v. Oldham-Sumner Lumber Company, employer, Texas Employers Insurance Association, insurer, by which appellee was awarded the total sum of $317.46, as compensation for the injury sustained by him, said award containing the following affirmative declaration without contradiction in the record as to the facts therein asserted, namely, "On this 18th day of September, A. D. 1928, after due notice to all parties at interest, came on to be considered by the Industrial Accident Board claim for compensation made and asserted herein by Dewey Adcock against the Texas Employers Insurance Association, which...