Towns v. Traders & General Ins. Co.
| Decision Date | 17 June 1937 |
| Docket Number | No. 1911.,1911. |
| Citation | 107 S.W.2d 460 |
| Parties | TOWNS v. TRADERS & GENERAL INS. CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Navarro County; H. F. Kirby, Special Judge.
Suit under the Workmen's Compensation Act by R. A. Towns to set aside an award of the Industrial Accident Board in favor of Traders & General Insurance Company. From a judgment denying relief, plaintiff appeals.
Reversed and remanded.
Richard & A. P. Mays, of Corsicana, for appellant.
Lightfoot, Robertson, Saunders & Gano, Robertson, Leachman, Payne, Gardere & Lancaster, and Claude Williams, all of Fort Worth, for appellee.
This is a workmen's compensation suit. R. A. Towns, the injured employee, entered into a purported settlement agreement, which was approved by the Industrial Accident Board, and the amount provided therein was paid to him. He later brought this suit to set aside the settlement agreement on account of alleged fraud in its procurement and to recover the compensation due him under the statute. At the conclusion of plaintiff's testimony, the court instructed a verdict for the insurance company. The plaintiff appealed.
Since the court withdrew the case from the jury and rendered judgment for the appellee on an instructed verdict, we must accept appellant's testimony as true and give it the most favorable construction. The evidence shows that Towns, while working for A. F. Day Construction Company, was sent to Hobbs, N. M., to assist in building a pipe line, and, while he was so engaged, a ditch bank caved in on him, and as a result he received a severe injury in the abdomen. Evidence of a hernia and possibly other internal injuries immediately appeared. He was carried to a local physician for examination and within a few hours thereafter transported by automobile to Odessa, Tex., and thence by train to Dallas, where the offices of his employer and that of the insurance carrier were situated. About 2 days and nights were consumed in making the trip, during which time Towns was suffering great pain from his injury and received practically no sleep. He was sent by his employer in Dallas to the office of the insurance company, where he contacted Chamberlain, the insurance adjuster. From there he was sent to the office of the company physician and after several hours delay he was examined and diagnosed as suffering from hernia. He returned to the office of the adjuster where negotiations for settlement were begun by the adjuster. Towns testified that he had had practically no sleep during the preceding 2 days and nights and was without funds and was suffering with great pain from his injuries and was very nervous, and that he was wholly unfamiliar with the provisions of the Workmen's Compensation Law (Vernon's Ann.Civ.St. art. 8306 et seq.) and the compensation allowed thereunder. Chamberlain, the claim adjuster, who was thoroughly familiar with the provisions of the Workmen's Compensation Law and the manner in which his company handled claims, told Towns that 60 per cent. of the average weekly wage for 26 weeks was the most that was paid in a hernia case; that this amount was paid only in a very severe case and that in Towns' case, 8 or 10 weeks would be the maximum allowance. Towns had been earning $5 per day, working 7 days a week. Compensation alone for 26 weeks would have exceeded $400. The adjuster offered him $200 in full settlement of his claim, and, after being informed by Chamberlain as to the maximum that he could recover for his injury, Towns offered to take $500. During these negotiations Towns grew so nervous that he felt he could no longer remain in Chamberlain's office. He arose to leave, informing Chamberlain that he was going home and that the company could send him his weekly allowance. Chamberlain said, And Towns replied. "Why can't you just pay me by the week and just take care of me down there" and Chamberlain replied, "We don't do that any more." They finally agreed on a settlement in full for $375, which amount was paid to Towns shortly thereafter. Towns went home and was operated on for hernia at his own expense and by his own physician. When he had apparently recovered from his operation and after returning home from the hospital, complications arose which required another and more radical operation in the abdomen. The physicians were unable to say whether the latter trouble was the result of the previous operation or...
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Harris v. Sanderson, 2437.
...few may be listed as follows: Bank of Washington v. San Benito & R. G. V. Ry. Co., Tex.Civ. App., 293 S.W. 599; Towns v. Traders & General Ins. Co., Tex.Civ.App., 107 S.W. 2d 460; O'Brien v. Von Lienen, Tex.Civ. App., 149 S.W. 723; Means v. Limpia Royalties, Tex.Civ.App., 88 S.W.2d 1080; J.......
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Traders & General Ins. Co. v. Towns
...annulling the settlement agreement. The defendant appealed. This is a second appeal of the same suit. See R. A. Towns v. Traders & General Insurance Co. Tex.Civ.App., 107 S.W.2d 460. Briefly stated, the evidence showed, in substance, that Towns was employed in Texas by Day Construction Comp......
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...adopted), an exception to the general rule with respect to representations as to matters of law was quoted from Towns v. Traders & General Ins. Co., 107 S.W.2d 460 (Tex.Civ.App. Waco 1937, no writ), where the Court said: But where one party, who possesses superior knowledge as to the law, t......