Texas Employers' Ins. Ass'n v. Russell
Decision Date | 28 March 1929 |
Docket Number | (No. 1824.) |
Parties | TEXAS EMPLOYERS' INS. ASS'N v. RUSSELL et al. |
Court | Texas 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:
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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