Texas Employers' Ins. Ass'n v. Hilderbrandt

• Decision Date: 01 June 1933
• Docket Number: No. 2405.,2405.
• Citation: 62 S.W.2d 209
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. HILDERBRANDT.
• Court: Texas Court of Appeals

Page 209

62 S.W.2d 209

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

No. 2405.

Court of Civil Appeals of Texas. Beaumont.

June 1, 1933.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Action by C. A. Hilderbrandt against the Texas Employers' Insurance Association to set aside an insufficient award under the Workmen's Compensation Act.

Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

A. L. Calhoun and D. C. Marcus, both of Beaumont, for appellant.

Fred A. White and Shivers & Baker, all of Port Arthur, for appellee.

WALKER, Chief Justice.

Appellee, C. A. Hilderbrandt, was the employee; D. N. Picton & Co., Inc., the employer; and appellant, Texas Employers' Insurance Association, the compensation insurance carrier, under the provisions of our Workmen's Compensation Act, articles 8306-8309, Rev. St. 1925. On the 3d day of December, 1930, while in the due course of his employment, appellee received a compensable injury. Not being satisfied with the award of the Industrial Accident Board, he gave due notice of appeal and upon trial in district court, on a verdict of the jury, was awarded compensation as for total incapacity for a period of 208 weeks on an average weekly wage of $24.25. Against this judgment, appellant presents the following assignments of error:

First: The court submitted the following issues to the jury, answered as indicated:

"Special Issue No. Ten (10). Has the plaintiff, C. A. Hilderbrandt, fully recovered from any disability resulting from the alleged injury of December 3, 1930?

"Answer `Yes' or `No' as you find the fact to be."

To which the jury answered: "No."

"Special Issue No. Twelve (12). Do you find that the permanent disability, if any, which the plaintiff, C. A. Hilderbrandt, sustained, if he did so, is directly attributable to any other cause than his alleged injuries?

"Answer `Yes' or `No' as you find the fact to be."

To which the jury answered: "No."

"Special Issue No. Thirteen (13). Do you find that the plaintiff, C. A. Hilderbrandt, is physically able to perform the same character of work he was performing before his alleged injury?

"Answer `Yes' or `No' as you find the fact to be."

To which the jury answered: "No."

"Special Issue No. Fourteen (14). Is the plaintiff's disability, if any, caused solely by rheumatism?

"Answer `Yes' or `No' as you find the fact to be."

To which the jury answered: "No."

The court charged the jury as follows on the issue of burden of proof: "This case will be submitted to you upon Special Issues, your answers to which will constitute your verdict, and your answers will be made from a preponderance of the testimony."

This charge erroneously imposed upon appellant the burden of establishing the affirmative of these issues. This was not appellant's burden. Under the law, appellee rested under the burden of establishing the negative of these issues and the charge given was reversible error. In Texas Indemnity Ins. Co. v. McCurry (Tex. Com. App.) 41 S.W.(2d) 215, 219, 78 A. L. R. 760, it was said: "Under the Workmen's Compensation Act (article 8307, § 5), the burden of proof is always upon the party claiming compensation. Here the claimant asserted his right to compensation because of having contracted tuberculosis of the lungs as the natural and direct result of injuries claimed to have been received on August 1, 1928, while in the International Creosoting & Construction Company's employ, and the burden was on him to establish that fact by a preponderance of the evidence, which necessarily included the further fact that he did not have such disease at the time he alleged he received such injuries; this was a contested question in the case, and the special issue on the subject should have been so framed as to place the burden of proof on him."

In Texas Employers' Ins. Ass'n v. Stephens (Tex. Civ. App.) 22 S.W.(2d) 144, 146, it was said: "Without discussing at length the question presented, we will say only that it is ruled in appellant's favor by the following cases: Nobles et ux. v. Texas Indemnity Ins. Co., 12 S.W.(2d) 199, by Judge Nickels of the Commission of Appeals, and referring to Mingus, Receiver, v. Wadley, 115 Tex. 551, 285 S. W. 1085, where it is said, in effect, the general rule is that where the cause of action and remedy for its enforcement are derived, not from the common law, but from the statute, the statutory provisions are mandatory, and exclusive, and must be complied with in all respects."

It is no answer to appellant's assignment of error to say that the issues submitted...