Texas Employers' Ins. Ass'n v. Boudreaux

• Decision Date: 27 January 1922
• Docket Number: (No. 467.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 238 S.W. 697
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. BOUDREAUX et al.
• Court: Texas Court of Appeals

238 S.W. 697

TEXAS EMPLOYERS' INS. ASS'N v.BOUDREAUX et al.

(No. 467.)^*

Court of Civil Appeals of Texas. Beaumont.

January 27, 1922.

Rehearing Denied February 15, 1922.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Regina Boudreaux for the death of her husband, opposed by the Gulf Production Company, subscriber, and the Texas Employers' Insurance Association.An award of weekly compensation by the Industrial Board was made an award in gross by the district court on review, and the Insurance Association appeals.Affirmed.

See, also, 213 S. W. 674;231 S. W. 756.

Harry P. Lawther, of Dallas, for appellant.

Gremillion & Smith, of Crowley, La., and Crook, Lord, Lawhou & Ney, of Beaumont, for appellees.

WALKER, J.

This case is before us again under mandate from the Supreme Court, remanding it to us under appellant's first assignment of error.Our former opinion is reported in 213 S. W. 674.Appellant's first assignment of error is set out in full in that opinion.

In remanding this case to us, the Supreme Court(231 S. W. 756), discussing our former opinion, said:

"The Court of Civil Appeals did not review the evidence touching the question of whether judgment should have been rendered in a lump sum, being of opinion that the trial court's findings upon this question were final, and not subject to be reviewed on appeal.This holding is the basis of the complaint made in the remaining assignment of error.

"Were the findings of the trial court with respect to whether the case was one calling for a lump sum settlement, subject to review by the Court of Civil Appeals?

"Section 18, part 1, of the act[Vernon'sAnn. Civ. St. Supp. 1918, art. 5246—37] provides that the compensation shall be paid from week to week as it accrues, unless the liability of the association is redeemed as provided elsewhere in the act.

"Section 15, part 1, of the act is as follows:

"`In cases where death or total permanent incapacity results from an injury, the liability of the association may be redeemed by payment of a lump sum by agreement of the parties thereto, subject to the approval of the Industrial Accident Board hereinafter created.This section shall be construed as excluding any other character of lump sum settlement save and except as herein specified; provided, however, that in special cases where in the judgment of the board, manifest hardship and injustice would otherwise result, the Board may compel the association in the cases provided for in this section to redeem their liability by payment of a lump sum as may be determined by the Board.'[Article 5246—33.]

"The act provides further (article 5246—44, Vernon's Sayles' Statutes, 1918 Supp.) that—

"`If the final order of the Board is against the association, then the association and not the employer shall bring suit to set aside said final ruling and decision of the Board, if it so desires, and the court shall in either event determine the issues in such cause instead of the Board upon trial de novo and the burden of proof shall be upon the party claiming compensation.In case of recovery the same shall not exceed the maximum compensation allowed under the provisions of this act.'

"Under the provisions of the foregoing articlethe trial court had authority to determine the issues in the case, including the issue as to whether or not the compensation should be paid in a lump sum.This issue is necessarily one of fact.Facts only could make it appear whether the case is a special one.

"Evidence was introduced upon this issue by defendants in error.It is not necessary to set it out.The trial court heard the case de novo, and made its findings upon all the issues, including the issue with respect to a lump sum award.We see no reason why these findings are not subject to the same character of review on appeal to which findings upon other fact issues are subject.The Court of Civil Appeals, in our opinion, has power to review, and should review, the findings upon the issue of a lump sum settlement.Choate v. S. A. & A. P. Ry. Co., 91 Tex. 406, 44 S. W. 69.

"We recommend that the judgment of the Court of Civil Appeals be reversed, and that the cause be remanded to that court for a review of the findings and conclusion of the trial court with respect to whether the case was one calling for a lump sum award, and for further orders."

Referring now to our former opinion in this case(Texas Employers' Insurance Association v. Regina Boudreaux[Tex. Civ. App.]213 S. W. 674), we find the following review of the facts under appellant's first assignment of error:

"There was no agreement of the parties for a lump sum settlement.The testimony of Mrs. Regina Boudreaux, the only witness on this point, testified: `My little girls have not got any property.They have no means of living but the living I give them.I make a living for them by running a rooming house.I have just been doing that since Christmas.I am a dressmaker, and used to sew.Since my husband's death I have sewed as a seamstress, and have supported my children that way.My children have no income from any other source, and I have no income from any other source.My husband was working in Texas for a year when he got killed; I do not know for whom he was working.During that year my husband did not send me any money.My husband was gone on his work; he was working for the last seven years.He had not quit me that I know of.I had not been making a living for myself and my children for seven years.Every time my husband come home he gave me all the money he had.During those seven years sometimes he stayed away three or fourth months before he came home.He never did stay as long as three years.The longest time he...