Traders & General Ins. Co. v. Daniel
| Decision Date | 13 July 1939 |
| Docket Number | No. 3861.,3861. |
| Citation | 131 S.W.2d 276 |
| Parties | TRADERS & GENERAL INS. CO. v. DANIEL. |
| Court | Texas Court of Appeals |
Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.
William V. Brown, of Texarkana, for defendant in error.
This is the second time this case has been before this Court. On the first appeal the case was reversed and remanded, Tex. Civ.App., 114 S.W.2d 336.
Defendant in error adopts as substantially correct the statement of the case as made by plaintiff in error. While the pleadings of the parties are substantially the same as on the former trial we think that, in view of some of the issues presented, it is necessary to state the case more fully than on the former appeal, adopting the facts as in appellant's brief, but more briefly.
The suit is brought by J. L. Daniel, as plaintiff, against Traders & General Insurance Company, as defendant, to set aside the award of the Industrial Accident Board and to recover compensation under the Workmen's Compensation Law, based upon pleading and the theory that plaintiff sustained an injury in the course of his employment as a common laborer with the International Creosoting & Construction Company on December 16, 1935, while engaged in rolling poles on the yards of his employer, which poles were stacked on skids, and while plaintiff was rolling one of said poles, thirty-five feet in length, off the stack of poles, said pole rolled from the stack of poles onto plaintiff and struck plaintiff on the back of his head, rendering him unconscious, fracturing his skull, resulting in paralysis to the right side of his face, right eye, his nose, loss of hearing in his right ear, loss of vision in his right eye; plaintiff received a concussion of the brain, fracture of the nose, and that as a result of said paralysis and said injuries plaintiff cannot close his right eye; that his nose is twisted; that when he laughs or smiles his mouth runs up one side of his face; that as a result of said injuries plaintiff has been totally and permanently incapacitated and disabled from work, produced by said injuries; that he suffers pain in his head, ear and face as a result of said injuries; that he is unable to stoop or lift anything without bodily pain; that on said December 16, 1935, his said employer was engaged in business embraced within the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., was an employer of labor and had in its employ three or more employees; that his said employer was a subscriber to and under the terms and provisions of said Compensation Act, and had been prior to said December 16, 1935, taking out a policy of compensation insurance with the defendant, which policy was in force and effect at the time plaintiff received his said injuries; that on and prior to December 16, 1935, plaintiff was under a verbal contract of hire to and with his employer company in Bowie County, Texas; that at the time of the injuries herein complained of plaintiff was working forty hours per week and was being paid therefor $10 per week; that prior to his said injuries plaintiff was a strong, healthy man, capable of doing all kinds of hard manual labor, but that since receiving said injuries he has not been able to work or earn any money, or earn a livelihood, but has been totally incapacitated from performing labor, and that he is so incapacitated from ever again performing any work; that he is still under the care and treatment of a physician.
Plaintiff alleged that if his average weekly wage and compensation rate cannot be fixed and determined as set out, then he alleges that same should be fixed and determined by the Court in any way or manner the Court might deem fair and equitable to all parties.
Plaintiff presented his claim for compensation to the Industrial Accident Board, and in his suit seeks to set aside the action of the Board.
Plaintiff alleges that to prepare and present his claim, and to prepare and present his claim in this suit, he retained as his attorney, William V. Brown, of Texarkana, and agreed with him to pay, for his services herein, the maximum amount prescribed by law, which plaintiff alleges to be fair and reasonable.
We think that in view of the issues presented here we need not further state the allegations and matters in plaintiff's petition.
Defendant answered by demurrers, general and special, general denial and cross action to set aside the award of the Board, and other matters we need not state.
The court overruled defendant's demurrers, and submitted the case to the jury on special issues.
On the issues submitted the jury found:
1. Plaintiff sustained total incapacity to labor on account of the injuries received by him while working for the defendant company on or about December 16, 1935.
2. That such total incapacity to labor is permanent.
3. That this is a case in which a manifest hardship and injustice will result to the plaintiff if the defendant company fails to redeem its liability to the plaintiff by the payment of money owing to him in one lump sum rather than in weekly installments.
4. Plaintiff's total incapacity to labor will continue and is permanent.
5. Plaintiff sustained no partial incapacity to labor as a result of his injuries.
6, 7, 8 and 9 submitted conditionally and were not answered.
10. The average weekly wage of plaintiff at the time of his injuries was $10 per week.
11. Plaintiff's incapacity to labor is not due solely to disease.
The Court found that defendant had theretofore paid plaintiff 26 weeks' compensation at the rate of $7 per week, amounting to $182, and rendered judgment for plaintiff for $2,364.32, as the present value of 375 weeks' compensation, and in a lump sum, and for all costs.
The Court overruled defendant's motion for a new trial, and defendant appeals by writ of error.
Opinion.We will designate the parties as plaintiff and defendant, as in the trial court.
Defendant filed assignments of error, and presents here fourteen propositions for consideration. They submit that the evidence conclusively shows that plaintiff did not sustain total and permanent incapacity to labor as a result of the injuries complained of, and that the trial court erred in refusing to give to the jury defendant's requested peremptory instruction to return a verdict in its favor; that the uncontradicted evidence shows that between the date of the alleged injury and the date of the trial in the District Court, plaintiff had been performing various and sundry jobs of labor for which plaintiff had...
To continue reading
Request your trial
-
Travelers Ins. Co. v. Wade, 16240
...Villa, Tex.Civ.App., 313 S.W.2d 627; Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772; Traders & General Insurance Co. v. Daniel, Tex.Civ.App., 131 S.W.2d 276; Texas Employers Ins. Ass'n. v. Hevolow, Tex.Civ.App., 136 S.W.2d 931; Oilmen's Reciprocal Ass'n. v. Harris, Tex......
-
Texas Employers' Insurance Association v. Chappell
...and permanent disability will be affirmed. Texas Employers' Ins. Assn. v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 1944); Traders & General Ins. Co. v. Daniel, 131 S.W.2d 276 (Tex.Civ.App.--El Paso 1939, writ dism'd, judg. corr.); Liberty Mutual Insurance Company v. Parrish, 469 S.W.2d 620 (Te......
-
Texas Emp. Ins. Ass'n v. Rollins
...290 (wr. ref.); Texas Employers' Ins. Ass'n v. Hevolow, Tex.Civ.App., 136 S.W.2d 931 (dis. judg. correct); Traders & General Ins. Co. v. Daniel, Tex.Civ.App., 131 S.W.2d 276 (dis. judg. corr.); Associated Indemnity Corp. v. Potts, 5 Cir., 164 F.2d 1002; Traders & General Ins. Co. v. Rischer......
-
Trinity Universal Ins. Co. v. Scott
...Southern Underwriters v. Stubblefield, Tex.Civ.App., Amarillo 1939, 130 S.W.2d 385, no writ history; Traders & General Ins. Co. v. Daniel, Tex.Civ.App., El Paso 1939, 131 S.W.2d 276, writ dism., judgment correct; Southern Underwriters v. Grimes, Tex.Civ.App., San Antonio 1940, 146 S.W.2d 10......