Traders & General Ins. Co. v. Smith, 7021

• Decision Date: 18 February 1958
• Docket Number: No. 7021,7021
• Citation: 311 S.W.2d 91
• Court: Texas Court of Appeals
• Parties: TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. Jess Willard SMITH, Appellee.

Page 91

311 S.W.2d 91

TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. Jess Willard SMITH, Appellee.

No. 7021.

Court of Civil Appeals of Texas, Texarkana.

Feb. 18, 1958.

Rehearing Denied March 18, 1958.

Collins, Garrison, Renfrow & Zeleskey, Henry H. Rogers, Lufkin, for appellant.

Fulmer, Fairchild & Barnett, Nacogdoches, for appellee.

FANNING, Justice.

Traders & General Insurance Company has appealed from a lump sum total permanent disability judgment (less $1,350 previously paid, being 54 weeks' compensation paid at the rate of $25 per week) rendered against it in favor of Jess Willard Smith in a workmen's compensation insurance case tried before a jury.

Defendant made stipulations on the lump sum issues and acceleration or increase of weekly wages and in accordance with defendant's motion in that regard, plaintiff's counsel was instructed by the court not to refer to pleadings or other matters regarding lump sum payment, attorneys' fees or acceleration of compensation payments, which instructions of the court were complied with.

The following portion of plaintiff's original petition: 'Wherefore, premises considered, plaintiff prays that, upon final hearing hereof, he have judgment of and from the defendant, compensation payments of 60 per cent of his average weekly wage, not to exceed $25,00 per week for 401 weeks, and plaintiff prays for all costs of suit and for general relief.' was read before the jury. Defendant's prior motion objecting to the teading of such matter to tne jury was overruled by the trial court, and appellant by its first point contends that the trial court erred in permitting such matter to be read to the jury. We hold that appellant's first point does not present reversible error under the record in this case. See the following authorities: Texas Employers' Ins. Ass'n v. Rigsby, Tex.Civ.App., 273 S.W.2d 681, and Texas Employers' Ins. Ass'n v. Logsdon, Tex.Civ.App., 278 S.W.2d 893, wr. ref., n. r. e.

In Texas Employers Ins. Ass'n v. Rigsby, 273 S.W.2d 681, 684, supra, it is stated:

'By its fifth point the appellant complains of the trial court's action in permitting counsel for plaintiff in the trial court, over its objection, to read to the jury that portion of plaintiff's original petition in which he alleged that he was entitled to recover 401 weeks of Workmen's Compensation insurance at the rate of sixty percent of his average weekly wage, not to exceed $25.00 per week. At the beginning of the trial, before the voir dire examination of the jury, appellant's counsel moved the court to instruct counsel not to inform the jury that he was seeking insurance at the rate of $25.00 per week for a period of 401 weeks and that counsel be prevented from reading that portion of his petition to the jury. The reason for the motion, as stated, was that it was not proper for the jury to know the amount of money plaintiff was seeking or the rate of compensation he was seeking, since to do so would inform the jury of these facts or impart informnation to them with which they are not concerned, since the jury would then be informed of the legal effect of its findings. In support of this point the appellant relies upon the case of Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000 by the Supreme Court. We are unable to see any similarity between the instant case and that case. As we view the matter the portion of the pleadings complained of and read to the jury with the rest of the petition was a portion of the prayer which simply stated what the plaintiff was suing for. It was not improper to thus inform the jury, but if such an action could be regarded as improper, no harm resulted to the appellant so far as we can ascertain from this record. In fact, the jury by its answer to the issue inquiring how long his incapacity would continue did not answer any number of weeks but answered only 'permanent'.'

In Texas Employers' Ins. Ass'n v. Logson, Tex.Civ.App., 278 S.W.2d 893, 897, wr. ref., n. r. e., supra, it is stated:

'Appellee's original petition in general is in the usual form found in this type of case. As a part of his alleged cause of action, he pleaded the maximum weekly compensation rate of $25 for a period of 401 weeks and relied on such rate whether he was able to obtain total permanent disability benefits or permanent partial disability benefits. To contend that such an allegation is one of law has been held not to be sound. Federal Underwriters Exchange v. Bickham, Tex.Civ.App., 136 S.W.2d 880, syl. 14, affirmed 138 Tex. 128, 157 S.W.2d 356. In our opinion, it was not reversible error in the case at bar to mention or refer to such weekly compensation rate in the presence of the jury or to have read that portion of the pleadings to the jury, if such pleadings were read to the jury.'

Appellant by its second point contends that the trial court erred in permitting the witness Foman to testify on cross-examination as to his computation of 60% of the sum of $25.32, plaintiff's wage for one week, over the objections of defendant. By its third point appellant contends that the trial court erred in not granting it a mistrial on the basis of the matter complained of by its second point. The jury answered the wage rate issues submitted. These findings are sufficient to establish that Subsections 1 and 2 of Sec. 1, Art. 8309, Vernon's Ann.Civil Statutes were not applicable under the facts in the case at bar, and are sufficient to establish the sum of $50 per week as an average weekly wage rate of plaintiff under Subsection 3, Sec. 1, Art. 8309, V.A.C.S., which would be just and fair to both parties. Appellant has not presented any points attacking the jury's findings on the wage rate issues submitted. We think the evidence was amply sufficient to sustain the jury's findings on the wage rate issues and these findings will support the then maximum weekly compensation rate of $25 per week to be paid plaintiff as his weekly compensation rate in this case. Furthermore, it is undisputed in the record that defendant paid plaintiff 54 weekly installments of compensation at the rate of $25 per week, aggregating $1,350. There were no pleadings or claim by defendant that such payments of compensation were induced by fraud, accident or mistake, or any effort to compromise. In Texas Employers Ins. Ass'n v. Grimes, Tex.Civ.App., 268 S.W.2d 786, 789, wr. ref., n. r. e., it is stated:

'We have carefully searched the record and we do not find any claim of appellant that the payment by it to appellee of ten weeks compensation at the weekly rate of $22.40 (aggregating $224) was induced by fraud, accident or mistake or any effort to compromise. We think these facts would justify and authorize a recovery for appellee at the rate of $22.40 per week. Tex.Jur., vol. 45, p. 660, sec. 212; Texas Employers Ins. Ass'n v. Hamor, Tex.Civ.App., 97 S.W.2d 1041; Southern Underwriters v. Erwin, Tex.Civ.App., 134 S.W.2d 720; Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598, error dism; Texas Employers Ins. Ass'n v. McNorton, Tex.Civ.App., 92 S.W.2d 562, error dismissed in 132 Tex. 168, 122 S.W.2d 1043.'

We hold that appellant's second and third points do not present reversible error under this record any they are respectfully overruled.

Appellant's fourth point dealing with the admissibility of evidence of wage rate raises expected by plaintiff, and its fifth point complaining of the jury argument by plaintiff's counsel with reference to such matter, are deemed as not presenting reversible error in this case for several reasons. First, it is thought that the evidence in question (while probably of small weight) probably had some vestige of pertinency under Subsec. 3, Sec. 1, Art. 8309, V.A.C.S. See Traders & General Ins. Co. v. Buils, 129 Tex. 362, 104 S.W.2d 488. Second, on cross-examination by appellant's counsel (prior to the elicitation of the evidence in question) the following testimony was adduced:

'Q. Was your rate of pay the same all during that time? A. No, they was to raise me.'

Since testimony to the same effect was already in the record without objection, further evidence along the same line would be merely cumulative. Third, the argument in question was not objected to when it was made and was first complained of in defendant's amended motion for new trial; furthermore, such argument would not present reversible error under the record in this case. Aultman v. Dallas Ry. & Term. Co., 152 Tex. 509, 260 S.W.2d 596. Fourth, even if the evidence and argument with respect to the wage rate issues were improper, such errors, if any, would be clearly harmless in view of the fact that the voluntary payment by defendant of 54 weeks' compensation at the rate of $25 per week to plaintiff, under the undisputed record in this case, would entitled plaintiff to a weekly compensation rate of $25 per week. See Texas Employers' Ins. Ass'n v. Grimes, Tex.Civ.App., 268 S.W.2d 786, wr. ref., n. r. e. Appellant's fourth and fifth points are respectfully overruled.

Appellant by its sixth point contends that the trial court erred in overruling its motion for mistrial because plaintiff's counsel asked plaintiff whether defendant had offered plaintiff anything to buy good with since defendant quit paying compensation and plaintiff answering negatively thereto. However, defendant made no objection either to the question or the answer, nor did defendant request the trial court to instruct the jury to not consider such question and answer. While we think the question and answer in question were improper, this was not the type of matter which could not have been cured by an appropriate instruction from the trial court if such a request had been made by appellant. See King v. Federal Underwriters Exchange, 144 Tex. 531, 191 S.W.2d 855 and Ramirez v. Acker, 134 Tex. 467, 138 S.W.2d 1054. Furthermore, in the light of the whole record, we think that such matter was not reasonably calculated to cause and probably did...