Texas State Highway Department v. Reeves

• Decision Date: 17 April 1942
• Docket Number: No. 4001.,4001.
• Citation: 161 S.W.2d 357
• Parties: TEXAS STATE HIGHWAY DEPARTMENT v. REEVES.
• Court: Texas Court of Appeals

161 S.W.2d 357

TEXAS STATE HIGHWAY DEPARTMENT v. REEVES.

No. 4001.

Court of Civil Appeals of Texas. Beaumont.

April 17, 1942.

Rehearing Denied April 29, 1942.

Appeal from District Court, Orange County; F. P. Adams, Judge.

Suit under the Workmen's Compensation Act by Richard E. Reeves, to set aside an award of the Industrial Accident Board in favor of the Texas State Highway Department. From a judgment granting relief, defendant appeals.

Affirmed.

Gerald C. Mann, Atty. Gen., and Wm. J. King, Geo. W. Barcus, and Ocie Speer, Asst. Attys. Gen., for appellant.

K. W. Stephenson, of Orange, for appellee.

WALKER, Chief Justice.

This is a workman's compensation case, with appellee, Richard E. Reeves, the employee, on allegations that appellant, Texas State Highway Department, was authorized by law to carry workmen's compensation insurance for its employees, and that in all respects it was qualified by law "to be, and was, self-insuring." Appellee plead in detail the facts supporting his prayer for total, permanent incapacity, and for a lump sum settlement. Appellant answered by pleas of general and special demurrers, general denial, pleas of partial and temporary disability, and that the total incapacity of appellee if established "was temporary, lasting not exceeding nine weeks." On the verdict of the jury, answering special issues, judgment was entered in appellee's favor for total, permanent incapacity, with his compensation to be paid in a lump sum, from which appellant has duly prosecuted its appeal.

The issue of "lump sum" was submitted to the jury by the following questions:

Special Issue No. 15 was as follows: "From the preponderance of the evidence, do you find that an injustice will result to Richard E. Reeves if a lump-sum settlement were denied him in the event you award him compensation herein?"

Special Issue No. 16 was as follows: "From the preponderance of the evidence do you find that manifest hardship will result to Richard E. Reeves if a lump-sum settlement were denied him in the event you award him compensation herein?"

Appellant makes the following statement of its exceptions to these issues:

"Defendant objected to Issue No. 15, `because any answer the jury might make would not support a judgment for a lump sum. * * *.'

"Defendant objected to Issue No. 16 `because any answer the jury might make would not support a judgment for a lump sum, * * *.'

"Defendant objected to Issues Nos. 15 and 16, jointly and severally."

In connection with its exceptions, appellant requested the submission of the following issue, which was refused: "Do you find from a preponderance of the evidence that if plaintiff is entitled to any compensation manifest hardship and injustice would result to him from the failure to pay such compensation to him in a lump sum?"

Appellant makes the point that its exceptions challenged the sufficiency of special issues Nos. 15 and 16 on the ground that they did not contain the statutory word "manifest." Section 15, Art. 8306, R.C.S. 1925. The exceptions were too general to call this omission to the attention of the trial court and appellee's counsel. Obviously, had the exception directed the court's attention to the very omission complained of, the exception would have been conceded by the court and the charge corrected. Exceptions to special issues, to be reviewed, must point out clearly the ground of the exception. Rule 274, Texas Rules of Civil Procedure; Isbel v. Lennox, 116 Tex. 522, 295 S.W. 920; Southern Underwriters v. Jones, Tex.Civ.App., 137 S.W.2d 52; Federal Underwriters Exchange v. Stricklin, Tex.Civ.App., 151 S.W.2d 612.

Since special issues Nos. 15 and 16 were not subject to appellant's exceptions, but submitted to the jury both issues of "hardship" and "injustice" within the requirements of Section 15 of Art. 8306, as construed by appellant's authority, Texas Employers' Ins. Ass'n v. Ray, Tex.Civ. App., 68 S.W.2d 290, the court did not err in refusing to submit appellant's requested issue. The requested issue did contain the statutory word "manifest" but this very point was not called to the attention of the court. The omission of the word "manifest" in issues 15 and 16 did not constitute fundamental error. The error assigned is one of omission only, and falls within the rule that erroneous omissions from the charge do not constitute fundamental error. First Nat. Bank v. Powell, Tex.Civ. App., 76 S.W.2d 870.

The court submitted to the jury the following issue

"Plaintiff's Requested Special Issue No. 3.

"Do you find from a preponderance of the evidence that such total incapacity, if any, of plaintiff resulting from such injury, if any, is permanent?"

Appellant's bill of exception to the submission of this issue gives the circumstances under which it was submitted, and appellant's objections to its submission: "Plaintiff's counsel began his opening argument several minutes before noon and at noon the court recessed for lunch. Following such noon hour after the court reconvened, and before plaintiff's counsel continued with his opening argument, plaintiff's special requested issue No. 3 was submitted to the court and to the defendant's counsel; whereupon defendant's counsel, Mr. King, in open court objected to the submission of said issue on the grounds that its submission at such time was placing undue emphasis before the jury; and in all probability would and did lead the jury to believe that the court was of the opinion that the jury would not only find that plaintiff was totally incapacitated, but that certain incapacity as would result from an injury to plaintiff was permanent; and further, because the manner and time and submission of said plaintiff's requested...