Texas Employers' Ins. Ass'n v. Henson, 1331-5842.
Citation | 48 S.W.2d 970 |
Decision Date | 28 April 1932 |
Docket Number | No. 1331-5842.,1331-5842. |
Parties | TEXAS EMPLOYERS' INS. ASS'N v. HENSON. |
Court | Supreme Court of Texas |
Harry P. Lawther, James P. Swift, and William M. Cramer, all of Dallas, for plaintiff in error.
Grisham Bros., of Eastland, for defendant in error.
This is a compensation case in which the defendant in error was found to be totally and permanently incapacitated by reason of a hernia received in the course of his employment, from which he failed to obtain relief through a surgical operation.
The jury found in answer to a special issue that manifest hardship and injustice would result to defendant in error if the insurer should fail to redeem its liability in a lump sum. There was no pleading, evidence, or finding as to what would constitute a reasonable rate of discount for a lump sum settlement for the weekly compensation to which defendant in error was found to be entitled.
The writ of error was granted in this case because of an apparent conflict between the decision of the Court of Civil Appeals and that of this section of the commission in Lumbermen's Reciprocal Association v. Wilmoth, 12 S.W.(2d) 972, 973. In the last-named case it was held that an issue reading: "Was or not the injury received by G. T. Wilmoth such as to totally and permanently incapacitate him from following any gainful occupation?" was duplicitous, and that the submitting of such issue in this form violated the statutory right of the plaintiff in error to have each issue arising in the case separately and distinctly submitted.
Special issue No. 7, given by the court in this case, which it is claimed violates the rule announced in the above case, was in the following form: "Did said injury of February 21, 1929, if any, result in the permanent and total incapacity of defendant E. P. Henson?"
Under our holding in the Wilmoth Case it was erroneous for the trial court to combine the issues of totality of the incapacity and permanency of the injury in a single issue. The reason for the rule anounced in the above case is that it was contemplated by the statute providing for the submission of a case on special issues that the parties to a suit are entitled to have each and...
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