Texas Employers' Ins. Ass'n v. Henson

• Decision Date: 12 September 1930
• Docket Number: No. 722.,722.
• Citation: 31 S.W.2d 669
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. HENSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

31 S.W.2d 669

TEXAS EMPLOYERS' INS. ASS'N v. HENSON.^*

No. 722.

Court of Civil Appeals of Texas. Eastland.

September 12, 1930.

Rehearing Denied October 10, 1930.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Action under the Workmen's Compensation Act by the Texas Employers' Insurance Association against E. P. Henson, claimant, and cross-action by claimant, to set aside an award of the Industrial Accident Board in favor of claimant. From a judgment for claimant, insurer appeals.

Affirmed.

James P. Swift, Harry P. Lawther, and Wm. M. Cramer, all of Dallas, for appellant.

Grisham Bros., of Eastland, for appellee.

FUNDERBURK, J.

E. P. Henson, while in the employ of Root & Rhodes, received an injury resulting in hernia, for which, after proper notice and claim, he was awarded compensation by the Industrial Accident Board for twenty-six weeks at $13.71 per week, together with the sum of $203.50 to cover doctor's and hospital bills. The award of the Industrial Accident Board recited as a fact that, following the injury, Henson had submitted himself to an operation "which has effected a cure." The Texas Employers' Insurance Association, the insurance carrier, and also the said E. P. Henson, each gave notice of their intention not to abide the award and this suit was duly filed in the district court. Based upon findings of the jury in response to special issues submitted, the trial court gave Henson judgment for the sum of $4,824.31, comprising items as follows: "$520.90, being 38 weeks past, plus $11.22 interest thereon, and 363 weeks at $13.71, less 6% compound interest, totalling a present value of $4,086.61, plus $205.50 doctor's and hospital bills."

The jury, in addition to finding the existence of a hernia and all the statutory facts to show that it was compensable, found that the operation which was performed April 15, 1929, was not successful and that the injury had resulted in total and permanent incapacity. The Texas Employers' Insurance Association has perfected appeal to this court.

Appellant's first contention seems to be that the district court had no jurisdiction to determine the existence of a general disability and adjudge compensation therefor, because the only matter before the Industrial Accident Board was a claim for a hernia and twenty-six weeks had not elapsed from the date of the operation for the hernia before the filing of appellee's cross-action. Stated otherwise, appellant's contention seems to be that the only jurisdiction the district court acquired was the claim before the Industrial Accident Board, which was a claim for hernia, and sufficient time had not elapsed for a review of any award for hernia.

Appellant cites only the provisions of Revised Statutes 1925, art. 8306, § 12b. There is therefore involved only a question of the proper construction of that statute, with particular reference to appellant's contentions. It is asserted that hernia is a specific injury under the Workmen's Compensation Act; that the benefits for hernia under the Workmen's Compensation Act are twenty-six weeks' compensation; that a review of an award or judgment for injury resulting in hernia must be after twenty-six weeks have elapsed so as to give twenty-six weeks' (six months') time in which to determine whether the operation was or was not successful; and that the district court, on appeal from the board, is a court of limited jurisdiction and takes only the jurisdiction the board had.

We think that hernia is not a specific injury in the same sense as the injuries provided for in section 12 of said article and that section 12b completely defines the conditions under which compensation may be made, as well as the several different limitations upon the amount that may be allowed as compensation. In a case of this kind the statute does not require an employee to give notice of or make claim for compensation for anything other than a hernia. The statute itself prescribes the condition under which such a claim is one "for incapacity under the general provisions of this law," or is one for "incapacity under the general provisions of this law for a period not exceeding one year," or is one as to which compensation is limited to pay for twenty-six weeks from the date of a successful operation. In this case the Industrial Accident Board determined that the injured employee had undergone a successful operation and limited his recovery to compensation for twenty-six weeks. The employee had only the two alternatives of accepting the award or appealing to the district court. He appealed to the district court. The district court thereby acquired jurisdiction to determine whether the operation was successful or unsuccessful, and if unsuccessful to award compensation for permanent disability. The statute prescribes no time within which the board or court shall determine whether or not the operation is successful or unsuccessful. The limitation of the benefits for hernia to twenty-six weeks' compensation is only in case the operation is successful and there is no such limitation where it is unsuccessful. The statute in our opinion gives no support to the view that there can be no review of an award or judgment until after twenty-six weeks have elapsed.

The further contention that the court was without jurisdiction to award a lump-sum amount of compensation is controlled by what has already been said. The court having exercised a proper jurisdiction to adjudge compensation for total and permanent disability, it had jurisdiction to further determine and adjudge that "manifest hardship and injustice" would result unless appellant should be required to redeem its obligation by the payment of a lump sum, as provided in section 15 of said article.

It is complained that Dr. T. E. Payne was permitted over the objection of appellant to testify as a matter of expert opinion that the hernia appeared suddenly. The propositions under this assignment assume that the injury occurred February 21, 1929, and that the hernia appeared March 2, 1929. This assumption, we think, is not warranted by the facts. It is true that part of the evidence of the existence of a hernia first became known to appellee on March 2d, but that was no more the appearance of the hernia than the pain and nausea suffered on February 21st previously. It seems to us that the word "appearance" is here used in the same sense as occurrence, or becoming manifest. We think the physician's testimony is properly susceptible of the construction that, in his opinion, the hernia appeared with the pain and nausea that immediately followed the attempt of Henson to kick off the switch. Such being the case, there could be no question but that it was suddenly. If the testimony of the physician was not proper, it was certainly entirely harmless.

There was likewise no error, we think, in the refusal of the court to submit a special issue requested by appellant, calling for a finding as to the intention of Henson about working on Sunday. His intention about the matter was wholly immaterial, the only question being whether or not the terms of the contract required or contemplated that he should unlawfully work on Sunday.

We next consider the contention that a peremptory instruction should have been given for appellant on the ground that the undisputed evidence showing that the contract of hire required and contemplated work on Sunday was, for that reason, illegal, and did not constitute appellee an employee under the Workmen's Compensation Law. Not all work or labor performed on Sunday is unlawful. "Works of necessity," for example, are...