Texas Employers' Ins. Ass'n v. Arnold, 6551.

• Decision Date: 11 December 1935
• Docket Number: No. 6551.,6551.
• Citation: 88 S.W.2d 473
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. ARNOLD.
• Court: Texas Supreme Court

88 S.W.2d 473

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

No. 6551.

Supreme Court of Texas.

December 11, 1935.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suits by Jim Arnold against the Texas Employers' Insurance Association were consolidated. A judgment for plaintiff was affirmed by the Court of Civil Appeals [57 S.W.(2d) 954], and defendant brings error.

Judgments of the Court of Civil Appeals and of the District Court reversed, and cause remanded for another trial.

Lawther, Cox & Cramer, Shelby S. Cox, and James P. Swift, all of Dallas, for plaintiff in error.

Bailey, Nickels & Bailey, of Dallas, for defendant in error.

SHARP, Justice.

For a partial statement of the nature and result of this case, we adopt the following clear statement from the opinion of Justice Looney, speaking for the Court of Civil Appeals:

"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 judgment of the trial court was affirmed by the Court of Civil Appeals. 57 S. W.(2d) 954.

It is undisputed that an agreed judgment, dated August 21, 1929, was entered in the district court of Dallas county, in favor of Arnold against the Texas Employers' Insurance Association, for the sum of $1,300. A full settlement of this judgment was made by the insurance company to Arnold and his attorneys. That judgment was in all respects final. Thereafter Arnold sought to set aside the aforementioned judgment, on the ground of fraud and misrepresentations as to his physical condition. In order to set aside this judgment, the duty rests upon Arnold to allege and prove fraud, mistake, or accident, and diligence on his part, and that he has been deprived of his rights without his fault. Courts of equity may retry the case, set aside the judgment, and grant appropriate relief warranted by pleading and proof on the entire case. In such proceeding for relief against the judgment, every issue must be disposed of, and relief denied or granted. In the case of Humphrey et al. v. Harrell et al. (Tex.Com. App.) 29 S.W.(2d) 963, 964, the following principles were announced:

"It has long been the settled rule in this state that the trial court is without power to grant a new trial after the expiration of the term at which the judgment assailed is rendered. The law has provided rules for new trials at the term at which a judgment is rendered, and, if a party has not availed himself of his legal remedy in a manner prescribed by law, it is lost. However, if it can be shown under certain circumstances where there has been fraud, accident, or mistake, and a person has been deprived of his rights through no fault of his own, courts of equity in the due exercise of their discretionary powers may grant relief by retrying the case upon its merits, and the...