Texas Employers' Ins. Ass'n v. Beckworth

• Court: Texas Court of Appeals
• Writing for the Court: Randolph
• Citation: Texas Employers' Ins. Ass'n v. Beckworth, 42 S.W.2d 827 (Tex. App. 1931)
• Decision Date: 07 October 1931
• Docket Number: No. 3649.,3649.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. BECKWORTH.

42 S.W.2d 827

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

No. 3649.

Court of Civil Appeals of Texas. Amarillo.

October 7, 1931.

Rehearing Denied November 4, 1931.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by Albert Beckworth against the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board. From a judgment for plaintiff, defendant appeals.

Affirmed.

Underwood, Johnson, Dooley & Simpson, of Amarillo, for appellant.

Wm. F. Nix, of Amarillo, for appellee.

RANDOLPH, J.

This suit is an appeal from an award of the Industrial Accident Board by appellee to the district court of Potter county, as plaintiff, against the appellant, Texas Employers' Insurance Association, defendant, to recover compensation alleged to be due the plaintiff for injury to himself, suffered on the 10th September, 1929, in Potter county, Tex., while an employee of Willborn Brothers Company at the time he was engaged in unloading a charge car from a truck.

The defendant filed its answer, consisting of a general exception, general denial, and specially pleading that if the plaintiff is or ever has been entitled to have or demand compensation benefits against defendant by reason of the alleged injuries mentioned in his pleadings herein, none of which is admitted but is expressly denied, the plaintiff has been paid such amount and duly received to his use and benefit the sum of $650, and defendant says that such sum has wholly discharged all compensation claims, if any, which plaintiff ever rightfully held in the premises.

In the trial in the district court, the case was submitted to a jury upon special issues, and upon the answers of the jury to same, the court rendered a judgment for the plaintiff. From said judgment appeal has been taken to this court.

The defendant in its first ten assignments of error complains of the admission of facts in evidence showing plaintiffs extreme poverty. Also as to the testimony of plaintiff in answer to the following questions: "How much money did you have on hand when they quit paying you?" Which was asked of plaintiff after he had testified that the association had discontinued the payments of weekly compensation, to which he testified: "I just had the last check they paid me." The plaintiff was then asked the question: "What had you been using your money for?" Over the objection of the defendant, the plaintiff testified: "To pay grocery bills and house rent."

The other nine assignments are based upon the questions, asked plaintiff and his wife, as to his inability to provide food and clothing for his family; the fact that he had supported his family on charitable donations by the church people; that he had been compelled to sell his furniture to get food. These facts are also brought out by the evidence of other witnesses, to which due objection was made. The objection was made by the defendant that the evidence was immaterial and irrelevant.

The plaintiff had pleaded extreme poverty in order to sustain his claim for a lump-sum settlement. This evidence was not irrelevant or immaterial. It shows the dire extremity of the plaintiff and his family and their need for a lump-sum settlement.

The evidence discloses that the plaintiff had, before his injury, supported his family in comfort, and that after his injury he was compelled to dispose of his furniture until only the merest necessities in the way of furniture were left, and that he and his family had been subsisting on church charities since then. From the evidence it appears that he was providing for his family in a way that denoted some degree of thrift in one of his class. Hence, the court did not err in admitting this evidence.

In the case of Consolidated Underwriters v. Saxon, 265 S. W. 143, 146, the Commission of Appeals says: "Weekly payments are provided in the act out of regard for the beneficiaries themselves, and not out of regard for the association or insurance companies. The provision for weekly payments was inserted, because such payments were, in the judgment of the Legislature, for the best interests of those to whom compensation was provided—to prevent squandering and waste. A `special' case is not necessarily determinable by the relative poverty of the claimant. The thrift, intelligence, foresight, habit of frugality, capacity to manage and keep the money of the given claimant, might as well make his a special case as direst poverty. The statute undertakes to leave it to the judgment of the court or jury as to what constitutes a special case. In such consideration the jury or court is not confined to a consideration of the paucity or profuseness of the claimant's earning capacity or income. Weekly payments might work the greatest `hardship or injustice' to the claimant having the greatest capacity because there might be, and probably would be, joined with that capacity ability and power to conserve and use beneficially and profitably the whole sum of the association's liability. Commutation to lump sums have been made in order to enable the employee to invest his compensation in a business of his own."

The Commission of Appeals, in the case of Herzing v. Texas Employers' Ins. Ass'n, 17 S.W.(2d) 1046, holds:

"Industrial incapacity (at least incapacity for such work at [as] Miss Herzing had been doing) is established by the verdict. And there is evidence tending to show: Poverty; lack of relationships wherein others are bound for her aid or support; necessity for help in ordinary personal affairs, such, e. g., as bathing or dressing; necessities (with prospects of continuance thereof) requiring expenditures consuming all or a large part of `weekly payments' so as that nothing would be left at end of 401 weeks; possibilities of present (or immediately future) handling of the `lump sum,' or a substantial part thereof, so as to produce revenue or by way of investments resulting in enhanced assets.

"We do not propose definition of a `special case.' But we do hold that the evidence supporting the findings of industrial incapacity (total and permanent) with the other evidence just summarized is some evidence of a `special case.' Cf. Lumbermen's Reciprocal Ass'n v. Behnken [112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Id. (Tex. Civ. App.) 226 S. W. 154], supra; Consolidated Underwriters v. Saxon [(Tex. Civ. App.) 250 S. W. 447; Id. (Tex. Com. App.) 265 S. W. 143], supra; Travelers' Ins. Co. v. Smith (Tex. Civ. App.) 266 S. W. 574-578; Georgia Casualty Co. v. Little (Tex. Civ. App.) 281 S. W. 1092, 1095. The insurer's assignment (to the contrary) must be overruled."

We therefore overrule the first ten assignments of error.

The defendant assigns as error the court's sustaining of an objection to its question addressed to the plaintiff while he was on the stand, in which he was asked: "What did you do down there that any ordinary unskilled laborer could not do?" The plaintiff partly answers this question: "Well, I don't know, any man that had any"—which was objected to by plaintiff's counsel as a supposition. The action of the court, if error, was rendered harmless because the defendant in cross-examining this witness proved by him: "That any ordinary man with strength and with his faculties at his disposal could do what he did down there."

The witness A. H. Willborn testified for appellant that he is and was the president of Willborn Brothers Company. That they had from twenty to thirty men employed.

"We carried a policy of workmen's compensation insurance issued to us that we kept in our possession during the year 1929. As to whether the premium had been paid to put it in force on the 10th day of September, 1929, I will state that the premium on that policy was paid monthly; sometimes maybe two months at one time. * * * For me to say that it was paid up to that time I would not want to make that statement. We considered that we had a policy in force all during that year. I do not know where that policy is now. I do not know what became of it. Ordinarily policies out of date are destroyed. I have not made any search for this policy and there was no search made by my office force that I know anything about. I will state that the general rule is that they are destroyed, but I would not say this one was destroyed, for I do not know. I don't think that I would know where it would ordinarily be found in our office and I don't know whether it is there or not. H. O. Willborn was the one who testified before. He was summoned here in this court and I think it was on this case. He is out of town today. I would not say positively that I would know the policy if I would see it again. That would be a matter of memory that I don't charge my memory with. I could not say whether the instrument shown me is a copy of the instrument or not without a comparison. The Texas Employers Insurance Association, I think, is the style of the company that sold the policy to us.

"On the day that Mr. Beckworth was injured, we considered that he was an employee of ours working in the regular line of his duty. We were paying him for what he did and we were satisfied with the services being rendered on that day."

Defendant objected to the questions propounded and the evidence sought thereby, on the ground that same called for an opinion and conclusion on a mixed...