Traders & General Ins. Co. v. Crouch

• Decision Date: 14 January 1938
• Docket Number: No. 13649.,13649.
• Citation: 113 S.W.2d 650
• Parties: TRADERS & GENERAL INS. CO. v. CROUCH.
• Court: Texas Court of Appeals

Page 650

113 S.W.2d 650

TRADERS & GENERAL INS. CO. v. CROUCH.

No. 13649.

Court of Civil Appeals of Texas. Fort Worth.

January 14, 1938.

Rehearing Denied February 18, 1938.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Suit under the Workmen's Compensation Act by A. W. Crouch, claimant, to set aside an award of the Industrial Accident Board in favor of the Cox Steel & Wire Company, Inc., employer, and the Traders & General Insurance Company, insurance carrier. Judgment for claimant, and the insurance carrier appeals.

Reversed and remanded.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, and Lightfoot, Robertson, Saunders & Gano and Claude Williams, all of Fort Worth, for appellant.

Houston & Johnson, of Dallas, for appellee.

SPEER, Justice.

This is a suit by A. W. Crouch to set aside an award of the Industrial Accident Board. Cox Steel & Wire Company, Inc., was the employer, and Traders & General Insurance Company the insurance carrier.

The case was tried to a jury on special issues. Upon a verdict rendered, judgment was entered for Crouch in a lump sum amount. The carrier has appealed to the Dallas Court of Civil Appeals and, by an order of the Supreme Court, has been transferred to this Court for review.

The assignments of error and propositions thereunder may be classified into four groups, viz.: (1) The court erred in not sustaining appellant's plea to the jurisdiction of the court, and in refusing its request for a peremptory instruction on that account; (2) the court erred in submitting an issue to determine appellee's average weekly wage rate under first subsection 3, section 1, of article 8309, Revised Civil Statutes, when no issue had been submitted and determined by the jury, finding it was impracticable to fix the rate under either first subsections 1 or 2 of section 1 of the same article; (3) the court erred in not setting aside the verdict of the jury and in not granting appellant a new trial because of improper argument of counsel for appellee during the trial of the case; (4) the court erred in submitting to the jury an issue inquiring if appellee was entitled, under the facts, to a lump sum settlement, because there was no competent testimony authorizing the submission of such an issue.

Logically, the matter of jurisdiction should have first consideration. We think no error is shown in this respect. The claim filed with the Industrial Accident Board does not have to contain a statement in dollars and cents showing jurisdictional amounts in the court to which an appeal may be taken from the award of the board. Jurisdiction is dependent upon the nature of the injury alleged in the claim to have been sustained. If the claim be one for which the law fixes the amount recoverable, or if the claim states the amount of damages sustained, and an appeal is taken from the award, it must be heard in the court having jurisdiction of the amount. American Employers' Ins. Co. v. Scott, Tex.Civ.App., 33 S.W.2d 845, writ refused. Even this rule is not an ironclad one. For instance, it was held in Hartford Accident & Indemnity Ins. Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205, and in Indemnity Ins. Co. v. Harris, Tex.Civ.App., 53 S.W.2d 631, that where the claim filed was for the loss of an eye, unless the claim specifically excluded all resulting injuries therefrom, the district court on appeal could consider enlarged claims proximately resulting from the injury.

The rule seems to be settled that jurisdiction may be shown by direct allegations in the petition that the amount claimed by him before the board was a sum within the jurisdiction of the court, or by an allegation containing the claim filed, in which it is shown that it was of such a nature that the average weekly wage, when multiplied by the maximum time for which compensation may be allowed, would produce an amount within the jurisdiction of the court. Beal v. Texas Indemnity Co., Com.App., 55 S.W.2d 801, 802; American Employers' Ins. Co. v. Scott, supra.

The claim filed with the board in this case, as in all claims that have come to our attention, was in an abbreviated form and, among other things, stated appellee had received "severe back injuries as later developments may show." No amount of damages in dollars was set out. Allegations were made that from these injuries appellee was totally and permanently incapacitated to perform manual labor. The petition also stated appellee had presented his claim to the board in conformity with the facts and circumstances set out in the petition.

Webster's International Dictionary defines the word "severe" as "sharp, distressing, violent, extreme, torture, rigorous, difficult to be endured."

"Severe illness," as applicable to representations made in applications for life insurance, relates to attacks of illness or disease which often leave a permanent injury and tend to shorten life. 7 Words and Phrases, First Series, p. 6457.

It does not require a liberal construction of the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., as has so often been enjoined by our courts, to hold that a "severe injury to the back" is one that may result in permanent total disability. It is one for which, upon proof, total and permanent disability compensation may be awarded. The additional allegations of the petition, taken in connection with the nature of appellee's injuries, as set out in the claim before the board, were ample to confer jurisdiction in this case.

There are two general classes of injuries for which compensation is provided under the Workmen's Compensation Act, viz.: (a) Those specific injuries for which the law fixes the amount of compensation, and (b) all other compensable injuries where the amount is based upon incapacity to labor as a result of the injury. Claims for those injuries embraced in the latter class may be filed with the Industrial Accident Board, and the description thereof shown in general terms. The injury sued for in this case is clearly within the second division mentioned, and was sufficient to authorize the board to hear the testimony as to the extent and result of the injury, and to make an award thereon. Likewise upon an appeal by the employee from the award to a court in the county where the injury occurred, under proper pleadings, as in this case, based upon the identical claim filed with the board, in which it was shown the injury was one for which a maximum compensation could be awarded, which when multiplied by the number of weeks of disability proven would bring the amount within the jurisdiction of the district court, the jurisdiction of that court was properly shown. Indemnity Insurance Co. v. Harris, Tex.Civ.App., 53 S.W.2d 631, writ of error refused.

In the recent case of Texas Indemnity Ins. Co. v. Williamson, Tex.Civ.App, 109 S.W.2d 322, 325, the claim filed with the board was shown to be a sprained back; the court said: "The allegations of the petition sufficiently identify the cause of action with the claim filed before the Industrial Accident Board. The court had jurisdiction. Texas Indemnity Ins. Co. v. White (Tex.Civ.App.) 37 S.W.2d 277 [writ dismissed]; Texas Employers' Ins. Ass'n v. Moore (Tex.Civ.App.) 46 S.W.2d 404, 405 [affirmed by the Supreme Court 123 Tex. 302, 70 S.W.2d 702.]" In Texas Indemnity Ins. Co. v. White, supra, it was held that the essential element for jurisdiction, on appeal from an award by the board, is the identity of the injury shown in the claim filed. The case of the same Texas Employers' Insurance Ass'n v. Moore, supra, uses even stronger language; there the court in referring to the White Case said: "In that case, we held that the identity of the injury received by the employee, for which he made claim before the board, with the injury shown by his petition in the court appealed to, was the determining factor in fixing the jurisdiction of that court." The holding in the case last quoted from was expressly approved by the Supreme Court, 123 Tex. 302, 70 S.W.2d 702.

In Beal v. Texas Indemnity Co., supra, the court discussed the pleadings of claimant before the court to which he appealed from the award of the board, and holds that they were sufficient to show he had filed his claim for an injury which resulted in total permanent incapacity. There, three ways are prescribed by which jurisdiction may be shown; the third is applicable to this case; it reads: "It is sufficient if it be shown that the claim for compensation before the board was for an injury for which the Compensation Law fixes a period of compensation which, when multiplied by the average weekly wage of the claimant, would result in a sum within the jurisdiction of the court in which the suit is brought. Travelers' Ins. Co. v. Peters (Tex.Com.App.) 17 S.W.2d 457."

In American Employers' Ins. Co. v. Scott, supra, it was held that the jurisdiction of the trial court in a suit to set aside an award of the Industrial Accident Board is determined by the maximum amount of compensation authorized by law for the particular injury, for which the claim was filed with the board, and not by the amount of the actual award.

The appellant here relies upon the case of Commercial Standard Ins. Co. v. Robinson, 91 S.W.2d 1147, 1149, decided by this court, in which it was held jurisdiction was not shown in the court to which the appeal was taken. A writ of error was granted by the Supreme Court in that case and has not yet been finally decided. The writ was granted because this court sustained an assignment of error to the trial court's refusal to hold it was without jurisdiction; the error complained of was in effect (a) that the plaintiff's full claim, and only claim, filed by him before the Industrial Accident Board, was for no greater amount than $157; (b) that plaintiff had not filed in the trial court a transcript of the award and the claim asserted by him before the board; and (c) that the notice of appeal from the award...