Texas Indemnity Ins. Co. v. Arant

• Decision Date: 30 April 1943
• Docket Number: No. 2359.,2359.
• Parties: TEXAS INDEMNITY INS. CO. v. ARANT.
• Court: Texas Court of Appeals

171 S.W.2d 915

TEXAS INDEMNITY INS. CO. v. ARANT.

No. 2359.

Court of Civil Appeals of Texas. Eastland.

April 30, 1943.

Rehearing Denied May 28, 1943.

Appeal from District Court, Taylor County; Owen Thomas, Judge.

Suit by J. T. Arant, an employee of Sears Roebuck Company, against Texas Indemnity Insurance Company, insurance carrier, to recover compensation for an alleged total and permanent incapacity resulting from an accidental injury. From a judgment for the employee, awarding him a lump-sum recovery, the insurance carrier appeals.

Judgment affirmed.

Wagstaff, Harwell, Douthit & Alvis, of Abilene, for appellant.

Scarborough, Yates & Scarborough, of Abilene, for appellee.

FUNDERBURK, Justice.

J. T. Arant, an employee of Sears Roebuck and Company, following the required procedure before the Industrial Accident Board, in due time brought this suit against the Texas Indemnity Insurance Company, compensation insurance carrier for said employer, to recover compensation for an alleged total and permanent incapacity resulting from an accidental injury received in the course of his employment, on the 31st day of July, 1941. Texas Indemnity Insurance Company will be referred to as the Insurer, Sears Roebuck and Company as the Employer, and J. T. Arant as the Employee.

The trial of the case by jury resulted in a verdict and judgment for the Employee awarding him a lump sum recovery. Insurer has appealed.

It is contended there was no evidence to show that the Employer had notice of the injury, if any, within thirty days thereafter. The finding of the jury upon the issue of such notice was to the effect that Mr. Hendrix was notified of the injury within the 30 days time. The Employee testified that he so notified Hendrix. Hendrix, it appears, was not available as a witness. The real question is whether notice to Hendrix was notice to the Employer. It was undisputed that Hendrix was head of two or three departments in the Employer's store, and that the Employee worked under him in one of the departments. There was testimony to the effect that both Hendrix and the Employee, in the pursuit of their employment, were engaged in lifting a heavy refrigerator when the alleged injury, if any, was sustained, and that the Employee told Hendrix that he had hurt himself while lifting the refrigerator.

We think that, at least in the absence of specially limiting circumstances not here involved, notice to a foreman or immediate superior by an employee working under him at the time of a claimed injury is notice to their common employer. "A notice to the employee's immediate superior", says Corpus Juris, "has been held a sufficient compliance with the requirements of the statute. Notice to the foreman of an injured employee has been held to constitute a notice to the employer." 71 C. J. p. 979, Sec. 764. For authorities supporting the text, more or less directly, see Kingston-Pocahontas Coal Co. v. Maynard, 209 Ky. 431, 273 S.W. 34; Roney v. Griffith Piano Co., 131 A. 686, 4 N.J.Misc. 31; Wabash Ry. Co. v. Industrial Commission, 286 Ill. 194, 121 N.E. 569; Clary v. Proudfit Co., 124 Neb. 582, 247 N.W. 417; Texas Employers' Ins. Ass'n v. Bradshaw, Tex.Civ.App., 27 S.W.2d 314; Texas Employers' Ins. Ass'n v. Wonderley, Tex.Civ. App., 16 S.W.2d 386; Texas Employers' Ins. Ass'n v. Booth, Tex.Civ.App., 113 S.W. 2d 231; Page v. State Insurance Fund, 53 Idaho 177, 22 P.2d 681, and authorities cited; Dawkins Lumber Co. v. Hale, 221 Ky. 755, 299 S.W. 991; Bates & Rogers Const. Co. v. Allen, 183 Ky. 815, 210 S.W. 467, and authorities cited.

The issue of notice, as we conclude, being raised only by the evidence of an interested witness, we cannot pass upon a question of preponderance of the evidence, as sought to be presented by Insurer's first point, such a question being necessarily controlled by considerations of the credibility of witnesses and the weight of the evidence, or in other words, matters exclusively for the determination of the jury.

Insurer's points Three to Six, inclusive, relate to a previous injury of the Employee. A previous injury, unless it has produced compensable disability, is immaterial, unless the sole cause of the disability for which compensation is sought. Issues were submitted as to whether the Employee, prior to the alleged injury, had an abnormal condition in his back, and if so, whether it was the sole cause of his present disability. These issues were answered to the effect that the Employee did have such abnormal condition, but that it was not the sole cause of his present disability. There is no necessary identity of a pre-existing abnormal condition, and an injury, to say nothing of such an injury as is compensable under the Workmen's Compensation Laws.

The only pleas tendering any such issues were a part of Insurer's answer that "in this connection [defendant] says that Plaintiff's condition and disability, if any, is the result of prior existing infirmity and prior injuries which existed prior to the 31st day of July, 1941, and that by reason thereof, the plaintiff is not entitled to recover herein." In our opinion this pleading does not purport to tender the issue of a prior compensable injury, as distinct from a mere infirmity or other injury or abnormal condition not necessarily an injury in any sense.

But it is unnecessary to rest our decision upon this ground, for whether so or not, such an issue was not submitted, and if it be granted that it was raised by the evidence, it was not conclusively established by the evidence. Rule No. 279, Texas Rules of Civil Procedure, in part, provides that "failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment." The Insurer makes no point based upon refusal of the court to submit an issue requested by it in substantially correct wording. The issue, if any, pleaded (and required by Rule No. 277 to be affirmatively pleaded) was one relied upon by Insurer. Failure to submit it, absent any request by Insurer for its submission, cannot be reviewed upon an objection to the court's failure to submit it. Rule No. 279.

The issues submitted relative to an abnormal condition of plaintiff's back were not elements of the same ground of recovery as the issue of a prior compensable injury. The law respecting each is different, made so by the provision of R.S.1925, Art. 8306, Sec. 12c.

Undeniably, the evidence was meager to support the issue of the Employee's right to a lump sum settlement. However, the law giving the right to an award of compensation in a lump sum, R.S.1925, Art. 8306, Sec. 15, affords no guide either as to the evidence required or the facts to be established by such evidence in showing hardship or injustice.

The law, instead of saying where manifest hardship and injustice would otherwise result, etc., says "where in the judgment of the board manifest hardship and injustice would otherwise result, the board may compel the association in the cases provided for in this section to redeem their liability by payment of a lump sum as may be determined by the board." (Italics ours.) The import of the language is that the question is to be determined as a matter of opinion (judgment) rather than as a matter of fact, based upon evidence in the more usual sense. A good analogy, we think, is to be found in a provision of R.S. 1925, Art. 4677, reading as follows: "The jury may give such damages as they think proportionate to the injury", etc. (Italics...