Traders & General Ins. Co. v. Bailey, 1973-6625.

• Decision Date: 13 May 1936
• Docket Number: No. 1973-6625.,1973-6625.
• Citation: 94 S.W.2d 134
• Parties: TRADERS & GENERAL INS. CO. v. BAILEY.
• Court: Texas Supreme Court

94 S.W.2d 134

TRADERS & GENERAL INS. CO. v. BAILEY.

No. 1973-6625.

Commission of Appeals of Texas, Section A.

May 13, 1936.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by W. M. Bailey against the Traders & General Insurance Company to set aside an order of the Industrial Accident Board refusing to set aside a compromise settlement of compensation theretofore approved. Judgment for claimant was affirmed by the Court of Civil Appeals [62 S.W.(2d) 696], and the defendant brings error.

Judgments of trial court and of Court of Civil Appeals set aside, and judgment rendered for defendant.

John P. Simpson, of Jacksboro, and Lightfoot & Robertson and Nelson Scurlock, all of Fort Worth, for plaintiff in error.

Grindstaff, Zellers & Hutcheson, of Weatherford, for defendant in error.

GERMAN, Commissioner.

Plaintiff in error, Traders & General Insurance Company, will be designated herein as defendant. Defendant in error, W. M. Bailey, will be designated as plaintiff. On September 14, 1931, while in the course of his employment as an employee of Independent Crushed Stone Company, plaintiff was injured. Defendant carried workmen's compensation insurance for the employer. Shortly after the injury, and without any order of the Industrial Accident Board, defendant began paying plaintiff compensation at the rate of $7 per week. In October, 1931, plaintiff was induced to go to Dallas for an examination by defendant's physician. Certain representatives of defendant made representations to plaintiff as to his condition and the extent of his injury, which representations were found by the jury to be untrue. By reason of these representations, plaintiff suggested that he would settle his claim for $100, and an agreement of settlement was signed October 8, 1931. This settlement agreement was transmitted to the Industrial Accident Board, and on October 10, 1931, the board informally approved same on condition of payment of the $100 by defendant. On October 9, 1931, the board was notified by plaintiff that he was not satisfied with the agreement of settlement, and the board was requested to investigate the matter. Notwithstanding this notification and request, plaintiff, on October 20, 1931, accepted the $100 and signed a settlement receipt. October 22, 1931, the Industrial Accident Board set the matter for hearing on November 19, 1931. The purpose of the hearing was to determine, first, whether or not the compromise settlement would be approved; and, second, in the event it was not approved, then the degree of incapacity of plaintiff and the extent of liability of defendant. On November 19, 1931, the board, upon a hearing, approved the settlement agreement.

Within due time plaintiff gave notice that he was not willing to abide by the order of the Industrial Accident Board approving the compromise settlement and that he would appeal. Suit was thereupon filed in the district court of Jack county to set aside the order of the Industrial Accident Board and for recovery of compensation, payable in a lump sum. Judgment of the district court was in favor of plaintiff, setting aside the order of the board and for compensation at the rate of $7 per week for 30 weeks and at the rate of $3.50 per week for 300 additional weeks, with deduction of $128 previously paid. The Court of Civil Appeals at first reversed the cause and rendered judgment in favor of defendant. On motion for rehearing, the judgment of the district...