Texas Employers' Ins. Ass'n v. Russell

Decision Date28 March 1929
Docket Number(No. 1824.)
PartiesTEXAS EMPLOYERS' INS. ASS'N v. RUSSELL et al.
CourtTexas Court of Appeals

Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.

Suit by Mrs. P. F. Russell and others against the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board and to recover compensation. Judgment for plaintiffs, and defendant appeals. Affirmed.

H. B. Sanders, of Dallas, for appellant.

Adams & McAlister, of Nacogdoches, for appellees.

O'QUINN, J.

Appellees brought this suit in the district court of Nacogdoches county to set aside an award of the Industrial. Accident Board and to recover compensation under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309) on account of the death of Peyton F. Russell, husband of Mrs. P. F. Russell, and father of her minor children. Appellees' petition contained the usual and necessary allegations in suits of this nature. Appellant answered by general demurrer, general denial, and specially that the injury alleged as causing the death of P. F. Russell had nothing to do with his decease, but that same was caused by disease from which he had been suffering long prior to the happening of the accident alleged to be the cause of his death, which disease was thought by appellant to be Bright's disease.

The case was tried to a jury, and, when appellees rested, appellant moved for a directed verdict in its favor, which was refused, and at the conclusion of all the evidence appellant again asked for an instructed verdict, which was also refused. The case was then submitted to the jury upon two special issues, in answer to which the jury found that Russell's death resulted from the injury he received, and that appellees were entitled to receive compensation in a lump sum. Judgment was entered in favor of appellees in the sum of $2,767.30. Appellant's motion for a new trial was overruled, and it brings this appeal.

Appellant's assignments asserting error in the court's permitting the witness Adams to testify to certain matters are all overruled. The testimony was admissible and proper.

Appellant's assignments asserting error in the admission of the testimony of the witnesses Gus Solomon, Mrs. Russell, Dr. Nelson, and Dr. Tucker are overruled. No error is shown.

Special issue No. 1 was: "Was the death of P. F. Russell caused from the injuries?" Appellant objected and excepted to this issue because of the use of the plural "injuries," whereas, in fact, the deceased only received one injury, and further because it suggested to the jury that more than one injury had occurred, and that it assumed that such was the case. This exception was overruled, and appellant presents same here as error. The assignment is overruled. The facts show that only one injury was received, and the jury was not misled by the form of the charge.

Appellant's assignment that the court erred in refusing its request for a peremptory instruction on the ground that there was no competent evidence that deceased died from the injuries received is overruled. We think the evidence abundantly shows that the injury caused Russell's death.

The assignment that the court erred in refusing appellant's request for an instructed verdict, on the ground that the jurisdiction of the court to hear and determine the case did not appear, in that the necessary procedure was not taken to give the court jurisdiction, is overruled. All matters necessary to the jurisdiction of the court are sufficiently shown.

Appellant's ninth, tenth, and twelfth propositions complain that the court erred in refusing its request for an instructed verdict, because the average weekly wage of the deceased was not in any manner shown or found, which must have been done before appellees could have judgment. The undisputed facts show that deceased was injured while in the course of his employment; that he received $2.70 per day and worked 6 days per week. There was no issue submitted to the jury relative to the average wages of deceased per day or week. No such issue was requested by either party. There were no objections or exceptions by either party to the charge of the court because of said issue not being submitted. Appellant's contention that the average weekly wage of deceased must be ascertained before compensation can be awarded or judgment rendered is correct, but we do not think it follows by any means that, because the issue as to the weekly wage was not submitted to the jury and there was no finding by the jury as to same, the request for an instructed verdict for appellant should have been given, or that the court could not render judgment on his own finding of the weekly wage.

Article 8309, R. S. 1925, provides:

"`Average weekly wages' shall mean:

"1. If the injured employé shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, substantially the whole of the year immediately preceding the injury, his average annual wages shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.

"2. If the injured employé shall not have worked in such employment during substantially the whole of the year, his average annual wages shall consist of three hundred times the average daily wage or salary which an employé of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.

"3. When by reason of the shortness of the time of the employment of the employé, or other employé engaged in the same class of work in the manner and for the length of time specified in the above subsections 1 and 2, or other good and sufficient reasons it is impracticable to compute the average weekly wages as above defined, it shall be computed by the Board in any manner which may seem just and fair to both parties."

Deceased had been working for his employer, the Texas Power & Light Company, about 3 or 4 weeks when his injury occurred. He was helping to clear right of way, and was receiving 30 cents an hour, and was working 9 hours a day, amounting...

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4 cases
  • Southern Underwriters v. Boswell
    • United States
    • Texas Court of Appeals
    • May 3, 1940
    ...Tex.Civ.App., 41 S.W.2d 722, writ refused; Royalty Indemnity Co. v. Madrigal, Tex.Civ.App., 14 S.W.2d 106; Texas Employers' Ins. Ass'n v. Russell, Tex.Civ. App., 16 S.W.2d 321, writ dismissed; Security Union Ins. Co. v. Hall, Tex.Civ. App., 37 S.W.2d 811; Daniels v. Starnes, Tex.Civ.App., 6......
  • Traders & General Ins. Co. v. Turner
    • United States
    • Texas Court of Appeals
    • February 28, 1941
    ...Reciprocal Ass'n v. Warner, Tex.Civ.App., 234 S.W. 545, affirmed by Commission of Appeals 245 S.W. 664; Texas Employers' Insurance Ass'n v. Russell, Tex.Civ.App., 16 S.W.2d 321, writ dismissed; and United States Fidelity & Guaranty Co. v. Morgan, Tex.Civ.App., 18 S.W. 2d 810, writ dismissed......
  • Postal Mut. Indemnity Co. v. James, 3882.
    • United States
    • Texas Court of Appeals
    • July 11, 1941
    ...to which appellee was entitled. The result was a mere matter of computation from known undisputed facts. Texas Emp. Ins. Ass'n v. Russell, Tex.Civ.App., 16 S.W.2d 321; Texas Emp. Ins. Ass'n v. Manning, Tex. Civ.App., 299 S.W. 534; Texas Emp. Ins. Ass'n v. Bateman, Tex.Civ.App., 252 S. W. 33......
  • Maryland Casualty Co. v. Drummond
    • United States
    • Texas Court of Appeals
    • February 23, 1938
    ...for computation of his average weekly wage. Petroleum Casualty Co. v. Williams, Tex. Com.App., 15 S.W.2d 553; Texas Employers' Ins. Ass'n v. Russell, Tex.Civ.App., 16 S.W.2d 321, writ dismissed; Texas Employers' Ins. Ass'n v. Manning, Tex.Civ. App., 299 S.W. 534, writ dismissed. We do not t......

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