Traders & General Ins. Co. v. Garry, 3306.

• Decision Date: 09 June 1938
• Docket Number: No. 3306.,3306.
• Citation: 118 S.W.2d 340
• Parties: TRADERS & GENERAL INS. CO. v. GARRY.
• Court: Texas Court of Appeals

118 S.W.2d 340

TRADERS & GENERAL INS. CO. v. GARRY.

No. 3306.

Court of Civil Appeals of Texas. Beaumont.

June 9, 1938.

Rehearing Denied June 22, 1938.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit under the Workmen's Compensation Act by Roy Garry, employee, to set aside an award of the Industrial Accident Board in favor of the Traders & General Insurance Company, insurance carrier of Mose Sampson. From a judgment granting relief, the defendant appeals.

Judgment affirmed.

Barnes & Barnes, of Beaumont, and Lightfoot, Robertson, Saunders & Gano, of Fort Worth, for appellant.

Shivers & Keith, of Port Arthur, for appellee.

WALKER, Chief Justice.

This is a compensation case, filed in the district court of Jefferson County as an appeal from an adverse award of the Industrial Accident Board by appellee, Roy Garry, against appellant, Traders & General Insurance Company, praying for judgment in a lump sum for permanent, total disability. On the verdict of the jury finding that appellee, in the course of his employment with Mose Sampson, suffered a permanent, total disability, and the other essential facts, he was awarded judgment for the sum of $2,501.56, to be paid in a lump sum. From that judgment appellant has duly perfected his appeal to this court.

On the undisputed facts, appellee at the time of his injury was in the employment of Mose Sampson, and appellant was Sampson's compensation insurance carrier. He brought this suit against appellant as Sampson's compensation insurance carrier, alleging that he was injured while in the course of his employment with Sampson. In his report of injury to the Industrial Accident Board he made the statement that he was an employee of Sampson Iron & Supply Company, and that Great American Indemnity Company was the compensation insurance carrier. Appellant advances the proposition that the claim in controversy in this suit was never adjudicated by the Industrial Accident Board, and, therefore, that the district court was without jurisdiction of appellee's cause of action. Appellant invokes a sound legal proposition; one cannot claim compensation and obtain an award as the employee of one person, and then sue in court as the employee of another. 45 Tex.Jur. 782; Griffith v. Associated Employers' Reciprocal, Tex.Civ.App., 10 S.W. 2d 129; White v. United States Fidelity & Guaranty Co., Tex.Civ.App., 45 S.W. 2d 756. But the facts do not support appellant's proposition of law. True, in his report of injury appellee named Sampson Iron & Supply Company as his employer and Great American Indemnity Company as the compensation insurance carrier, but when the report was filed, the Industrial Accident Board entered his claim on its docket, "Roy Garry, Employee, v. Mose Sampson, Employer"; and after giving appellant due notice of appellee's claim, on the 9th day of March, 1936, entered its award in his favor against appellant for total incapacity in the sum of $258.49, and for partial incapacity for 300 weeks at $4.97 per week. Before appellee filed his claim with the Industrial Accident Board appellant recognized its liability to him by paying him about 8 weeks' compensation. It is our conclusion that the Industrial Accident Board had before it all parties interested in the award, and made its final award as between the necessary parties— appellant as the compensation insurance carrier, appellee as the employee, and Mose Sampson as the employer. On the undisputed facts, the district court had jurisdiction of appellee's appeal from the final award of the Industrial Accident Board.

Appellee offered in evidence his "First Report of Injury" and it was received over appellant's objection that its introduction was inhibited by Sec. 5 of Art. 8309, Vernon's Ann.Civ.St.:

"The reports of accidents required by this law to be made by subscribers shall not be deemed as admissions and evidence against the association or the subscriber in any proceedings before the board or elsewhere in a contested case where the facts set out therein or in any one of them is sought to be contradicted by the association or subscriber."

This report reflected the following facts: Sampson Iron & Supply Company of 999 Crockett Street, Beaumont, Texas, as the employer, engaged in "scrap iron and pipe"; Great American Indemnity Company as the compensation insurance carrier; date of injury Thursday, 3:30 p. m., September 29, 1936; date of disability, Thursday, 3:30 p. m., September 29, 1936; appellee and his foreman knew of the accident "at the time it happened"; appellee had been employed 2 weeks at 30 cents per hour, 9 hours per day, wages $2.70 per day, worked 6 days per week; cause of injury "crane broke and threw man off of balance"; nature of injury, "bruises and cuts around head and face and left leg"; "don't know" probable length of disability and, at the time of making the report, appellee had not returned to work. It was conceded—shown by the undisputed evidence—that the Sampson Iron & Supply Company was not the employer, and that Great American Indemnity Company was not the compensation insurance carrier. It was further shown that the mistake in naming the employer and compensation insurance carrier was corrected by the Industrial Accident Board before making its award, and that appellant recognized its liability to appellee by paying to him certain installments of compensation. As to all the other facts recited in the report, there was no controversy; they were established by the undisputed testimony. The error, if any, in receiving the First Report of Injury in evidence was harmless. In the cases cited by appellant in support of its proposition, the facts "set out" in the report were controverted by the compensation insurance carrier. Traders & General Ins Co. v. Rudd, Tex.Civ.App., 102 S.W.2d 457; Liberty Mutual Ins. Co. v. Boggs, Tex.Civ. App., 66 S.W.2d 787; Employers' Casualty Co. v. Watson, Tex.Civ.App., 32 S.W.2d 927; 3 Tex.Jur. 1257.

While Dr. Long was giving his testimony as a witness for appellant, the following proceedings were had:

"Q. And he had been under your daily care, had he or not, since the injury? A. Well, not daily. * * *

"Q. You not only examined him but you were treating him, were you not? A. Yes, sir.

"Q. From all your treatment and all your examinations and observations you have described of this man, what in your opinion is the incapacity he is suffering now because of and by virtue of that injury he received? A. At the present time I don't see anything in the way of suffering.

"Q. When did that incapacity terminate in your judgment, that he did have? A. About January 7, 1937.

"The Court: That's your opinion? A. Yes, sir.

"The Court: You are not stating these as facts, but it is your opinion? A. My opinion only, yes, sir.

"Mr. Barnes: That's all we were asking for Your Honor. A. However, it was the man's opinion, too, Judge on the 7th of January.

"The Court: I just wanted to know.

"Mr. Barnes: We want to reserve a bill of exception to the remarks of the court.

"The Court: You can have your exceptions.

"Q. I'll ask you then since the court has asked that question if since January 6, 1937, there has been any evidences of incapacity found by you on this man? A. No, sir."

In the absence of a jury appellant moved for a mistrial on the ground that the remarks of the court to Dr. Long were:

"Very prejudicial to the rights of this defendant, and the defendant alleges were highly inflammatory and prejudiced the jury against the rights of this defendant. * * * That remarks and inquiries were of such nature as to in the state of the record be so prejudicial and so inflammatory as to no doubt cause a miscarriage of justice in the case and are of such nature as not to be able to be removed by mere instructions on the part of the court."

The court did not err in refusing to grant appellant a mistrial. His question to Dr. Long and his reply to appellant's counsel were not "prejudicial" to appellant's rights nor were they "highly inflammatory". The remark to the witness was a request for an explanation—was the witness testifying to "facts" or to his "opinion". Under no construction was this remark a comment upon the nature or weight of Dr. Long's testimony, nor of his credibility as a witness. This construction of the court's remarks clearly distinguishes this case from Southland Greyhound Lines v. Matthews, Tex. Civ.App., 74 S.W.2d 713; Texas & Louisiana Lumber Co. v. Rose, Tex.Civ.App., 103 S.W. 444; McDaniel v. Orr, Tex.Com.App., 33 S.W.2d 427; Texas Employers' Ins. Ass'n v. Adcock, Tex.Civ.App., 27 S.W.2d 363; S. Lightburne & Co. v. First Nat. Bank, Tex.Civ.App., 232 S.W. 343; St. Louis, B. & M. Ry. Co. v. Green, Tex.Civ. App., 183 S.W. 829.

Though duly requested by appellant, the court refused to submit the following issue:

"Do you find from a preponderance of the evidence that plaintiff's incapacity, if any you have found, is not due solely to disease?"

It requires no citation of authorities to support appellant's legal proposition that all issues raised by the pleadings and evidence should be submitted when duly requested; but only the issues raised by the pleadings and evidence should be submitted. The evidence did not raise the issue that appellee's disability was due "solely to disease", but on the contrary the evidence, without dispute, was to the effect that the disability, if any, resulted entirely from the injuries received by him in the course of his employment with Mose Sampson. The court did not err in refusing to submit the issue. Scott v. Waldrop & Co., Tex.Civ.App., 8 S. W.2d 552; Long v. McCoy, Tex.Civ.App., 294 S.W. 633, affirmed Tex.Com.App., 15 S.W.2d 234; International-G. N. Ry. Co. v. Hailey, Tex.Civ.App., 9 S.W.2d 182; Houston Textile Mills v. Montgomery, Tex.Civ. App., 83 S.W.2d 754; Texas Indemnity Ins. Co. v. White, Tex.Civ.App., 37 S.W.2d 277; City of Houston v. Scanlan, 120 Tex. 264, 37 S.W.2d 718.

Under the...