Texas Employers' Ins. Ass'n v. Lemons
| Decision Date | 05 June 1935 |
| Docket Number | No. 6386.,6386. |
| Citation | 83 S.W.2d 658 |
| Parties | TEXAS EMPLOYERS' INS. ASS'N v. LEMONS. |
| Court | Texas Supreme Court |
Lawther, Cox & Cramer, Wm. M. Cramer, and Shelby S. Cox, all of Dallas, for plaintiff in error.
White & Yarborough, of Dallas, for defendant in error.
This suit was filed in the district court of Dallas county, Tex., by Texas Employers' Insurance Association against O. O. Lemons to set aside an award of the Industrial Accident Board allowing statutory compensation to O. O. Lemons for specific accidental injury of hernia. Lemons and his attorneys answered by cross-action. Such answer in substance alleged that on November 1, 1928, Lemons, while employed by the Oliver & Myers Manufacturing Company of Dallas, Tex., and working within the scope of his employment, in lifting a crate of glass, sustained injuries resulting in a hernia, and also sustained certain other injuries. Texas Employers' Insurance Association was a compensation insurance carrier for the employer.
We shall hereafter refer to O. O. Lemons as Lemons and to Texas Employers' Insurance Association as the association.
The case was submitted to a jury on numerous special issues in the district court, and, based on the jury's answers to such issues, judgment was rendered for Lemons for $4,120.26. The judgment also protected Lemons' attorneys for their fees. On appeal by the association, this judgment was affirmed by the Court of Civil Appeals. 52 S.W.(2d) 767. The association brings error.
Preliminary to the questions or issues submitted to the jury by the trial court, the court gave the jury the following instruction: "This case is submitted to you upon the following special issues, which you will please answer from a preponderance of the evidence, that is, the greater weight and degree of credible testimony before you, without regard to the effect your answers may have upon the judgment in the case, the burden of proof being upon the defendant."
The trial court gave the jury no other instruction than the above as to the burden of proof.
After giving the above instruction and certain other instructions not germane here, the trial court submitted a number of issues or questions to the jury. Such questions were all answered in favor of Lemons. For the purposes of this opinion, Question No. 1 is typical of all the others. Such question reads as follows:
The association in various ways and in due time and form objected to the court's charge and the various issues or questions therein contained, on the ground, in substance, that such charge and the issues or questions therein failed to indicate to the jury on whom rested the burden of proof. The association also presented to the trial court a special charge instructing the jury as to the burden of proof on the various questions. We are of the opinion that the charge was erroneous in the particular indicated. Section 5 of article 8307, R. C. S. 1925; Psimenos v. Huntley (Tex. Civ. App.) 47 S.W.(2d) 622.
Section 5 of article 8307, supra, in express language places the burden of proof in compensation cases on the party claiming compensation. We quote the following from that statute: "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...
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...11 was subject to appellant's exception, and the court should have given this requested issue. 45 Tex.Jur. 580; Texas Employers' Ins. Ass'n v. Lemons, 125 Tex. 373, 83 S.W.2d 658; Washington Nat. Ins. Co. v. Chavez, Tex.Civ.App., 106 S.W.2d 751. But the error was harmless, on the record bef......
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