Traders & General Ins. Co. v. Harper

• Citation: 140 S.W.2d 593
• Decision Date: 21 May 1940
• Docket Number: No. 5540.,5540.
• Court: Court of Appeals of Texas
• Parties: TRADERS & GENERAL INS. CO. v. HARPER.

140 S.W.2d 593

TRADERS & GENERAL INS. CO. v. HARPER.

No. 5540.

Court of Civil Appeals of Texas Texarkana.

May 21, 1940.

Rehearing Denied May 23, 1940.

Error from District Court, Cass County; R. H. Harvey, Judge.

Suit under the Workmen's Compensation Act by Traders & General Insurance Company and by J. C. Harper to set aside an award of the Industrial Accident Board. To review a judgment awarding compensation, Traders & General Insurance Company brings error.

Affirmed.

Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.

Phillips, Williamson & Smith and A. C. Cooke, all of Tyler, for defendant in error.

JOHNSON, Chief Justice.

This is a suit arising under the Workmen's Compensation Act wherein J. C. Harper was the employee, Southwest Contracting Company the employer, and Traders & General Insurance Company the insurer. Both the employee and insurer perfected appeals from the award of the Industrial Accident Board, and thereafter these suits were consolidated and tried on the employee's first amended original petition wherein he sought compensation for alleged total and permanent incapacity sustained May 4, 1937, as the result of injuries to his body, struck and mashed by stone and dirt by the sudden caving in of a ditch in which he was working for Southwest Contracting Company.

Trial to a jury upon special issues resulted in a verdict and judgment awarding Harper compensation for total and permanent incapacity, at the rate of $13.85 per week, payable in a lump sum settlement. From an order overruling its motion for a new trial, Traders & General Insurance Company gave notice of appeal and has perfected same by way of writ of error.

Appellant's propositions 1 to 6, inclusive, contend that the trial court was without authority to award appellee compensation "at the rate of $13.85 per week," because no issues were submitted, and no findings of the jury had, establishing an average weekly wage rate under Subsection 1, 2 or 3, of Sec. 1, Art. 8309, Vernon's Ann.Civ.St. Appellee alleged that he was earning $4 per day, $28 per week, at the time of his injury; and by alternative pleas he alleged facts which if supported by proof would establish his average weekly wages under said sections of the statute respectively; and the petition contained further allegations to the effect that appellant had admitted his weekly compensation rate to be $13.85 per week by voluntarily paying him that sum per week for a period of 18 weeks. Appellant alleged that such payments were made by it to appellee upon misrepresentations of fact made by appellee to appellant concerning his wage rate and therefore appellant was not in any manner bound by reason of having made such payments. Appellee testified that at the time of his injury and for a period of eight days preceding same he was doing pipe line work for Southwest Contracting Company near Oil Center in Cass County, Texas; that he was earning $4 per day; that this work had been going on in that neighborhood for about eighteen months or two years; that he knew the name of two men, Coy Draper and Lillian Young, who had been working regularly on the job; that in filing his claim for compensation he correctly stated the amount, $4 per day, he was earning; that no person representing appellant had ever made inquiry of him concerning his wage rate, and that he had never in any way misrepresented same; that appellant had paid him compensation for 18 weeks at the rate of $13.85 per week. Appellant introduced no evidence tending to support its plea that in paying appellee compensation for 18 weeks at the rate of $13.85 per week it had done so upon misrepresentation of fact made by appellee as to his wage rate. Nor is it shown that appellant made such payments upon misrepresentation by any one, or by mistake of fact on its part as to appellee's wage rate, nor is it shown that appellee's compensation rate should be less than $13.85 per week. In the absence of any evidence that the payments were made upon mistake or misrepresentation as to appellee's wage rate, or that he was entitled to a smaller compensation wage rate, we think that appellant's admission in paying appellee compensation for 18 weeks at the rate of $13.85 per week is sufficient to support the judgment awarding that rate. Traders & General Ins. Co. v. Patterson, Tex.Civ. App., 123 S.W.2d 766; Traders & General Ins. Co. v. Slusser, Tex.Civ.App., 110 S.W.2d 598; Texas Employers Ins. Ass'n v. Hamor, Tex.Civ.App., 97 S.W.2d 1041; Traders & General Ins. Co. v. Rhodabarger, Tex.Civ.App., 93 S.W.2d 1180; Fidelity & Casualty Company of New York v. Branton, Tex.Civ.App., 70 S.W.2d 780; Texas Employers' Ins. Ass'n v. Beckworth, Tex.Civ.App., 42 S.W.2d 827; Southern Surety Co. v. Eppler, Tex.Civ. App., 26 S.W.2d 697; Georgia Casualty Co. v. Ginn, Tex.Civ.App., 272 S.W. 601; Lawler's Workmen's Compensation Law, p. 319, Sec. 163, par. 2.

Under propositions 7 to 14, inclusive, appellant complains of the instructions accompanying special issues Nos. 6, 7, 8, 9, 10, 14, 15, and 17, wherein the court immediately following each of said questions, instructed the jury as to the form or language to be used in wording their answers. Said instructions following special issues Nos. 6 and 9, contained in appellant's propositions No. 7 and No. 10, are illustrative of the other issues and of the accompanying instructions complained of following same. Appellant's 7th proposition reads as follows: "In a compensation case tried before a court and jury the burden of proof is on the claimant to establish total and permanent incapacity from a preponderance of the evidence. The court erred, therefore, in submitting Special Issue No. Six reading as follows: `Do you find from a preponderance of the evidence that such total incapacity, if any, is permanent? Answer: Yes or No.', to which the jury answered `yes' over the objections of the defendant to the effect that such issue as framed was confusing and misleading when taken in connection with the court's definition of `preponderance of the evidence' and was confusing to the minds of the jury in that the court's instruction had the effect of placing the burden of proof upon the defendant to establish the negative of said issues by a preponderance of the evidence, which is a greater burden than the law imposes upon it."

Appellant's 10th proposition reads as follows: "In a compensation case tried before a court and jury the burden of proof is on the claimant to establish that the incapacity is not partial from a preponderance of the evidence. The court erred, therefore, in submitting Special Issue No. Nine reading as follows: `Do you find from a preponderance of the evidence that the incapacity of J. C. Harper, if any, is not partial incapacity?' Answer: `It is not partial' or `It is partial.', to which the jury answered `It is not partial' over the objections of the defendant to the effect that such issue as framed was...