Traders & General Ins. Co. v. Porter

• Decision Date: 02 November 1938
• Docket Number: No. 10474.,10474.
• Citation: 124 S.W.2d 900
• Parties: TRADERS & GENERAL INS. CO. v. PORTER.
• Court: Texas Court of Appeals

124 S.W.2d 900

TRADERS & GENERAL INS. CO. v. PORTER.

No. 10474.

Court of Civil Appeals of Texas. San Antonio.

November 2, 1938.

Rehearing Denied February 15, 1939.

Appeal from District Court, Starr County; L. Broeter, Judge.

Proceeding under the Workmen's Compensation Act by H. L. Porter, employee, against the Traders & General Insurance Company, insurance carrier, to recover compensation for loss of capacity as the result of an injury received in the course of claimant's employment by G. B. Bryant and another. From a judgment awarding claimant a lump sum as compensation for permanent total incapacity on his appeal from the Industrial Accident Board's award of weekly compensation, the insurance carrier appeals.

Affirmed.

Abney & Whitelaw, of Brownsville, and Lightfoot, Robertson & Gano, of Fort Worth, for appellant.

H. K. Stanfield, of Corpus Christi, and Chas. J. Lieck, of San Antonio, for appellee.

SMITH, Chief Justice.

This proceeding was brought under the Workmen's Compensation Act by H. L. Porter against Traders & General Insurance Company, for compensation for loss of capacity alleged to have been sustained by him on February 26, 1935, in Starr County, as a result of injury received while in the course of his employment as a "rough neck" by G. B. Bryant and R. H. Wise, oil operators.

Porter was awarded compensation by the Industrial Accident Board at the rate of $20 per week, for total incapacity, for a period of 150 weeks. On Porter's appeal to the district court, upon jury findings of permanent total incapacity, and average daily earning capacity of $6.40, he was awarded a lump sum of $4,810.78, and the Insurance Company has appealed.

In his original petition filed in the district court on January 5, 1938, appellee alleged that "at the time of said accident and within thirty days thereafter * * * defendant had actual notice of the injuries and that the plaintiff within due time, manner and form presented and filed his claim for compensation for the herein described injuries to the Industrial Accident Board of Texas. Plaintiff alleges that said claim filed with the board was one within the jurisdiction of the court." And appellee further alleged: "Plaintiff says that after said accident herein set out he made claim for compensation and filed his claim with the Industrial Accident Board of Texas in due time, manner and form for the herein described injuries, and that thereafter and with due notice to all parties said claim was set down for hearing, and on or about the 7th day of December, 1937, the said Industrial Accident Board rendered its final ruling, decision and award on the claim of the plaintiff; * * * that within twenty days after the rendition of said final ruling, decision and award of said board the plaintiff filed with said board notice that he would not abide by the ruling and decision of said board, and thereafter on the date of the filing of this suit (January 5, 1938) in this court brought suit in Starr County, Texas, the place where the injury to the plaintiff occurred, to set aside said final ruling, decision and award of said Industrial Accident Board."

Appellant filed no other pleading in the suit than his original answer, containing only the general demurrer and general denial.

Appellant now contends, in its first and second propositions, that the record shows that appellee did not timely file his claim with the Industrial Accident Board, nor his notice of appeal from the award of that Board, nor his appeal therefrom in the District Court, within the times prescribed by statute as jurisdictional prerequisites to the prosecution of the proceeding in the courts. It is not deemed necessary to go into the matter of the effect or sufficiency of the evidence in the record, in view of the provisions of Art. 8307b as it appears in 1938 Supp.Vernon's Civ.Stat. (Acts 1937, 45th Leg., pp. 535, 536, Ch. 261, § 2), as follows:

"In the trial of any case appealed to the court from the board the following, if plead, shall be presumed to be true as plead and have been done and filed in legal time and manner, unless denied by verified pleadings:

"(1) Notice of injury.

"(2) Claim for compensation.

"(3) Award of the board.

"(4) Notice of intent not to abide by the award of the board.

"(5) Filing of suit to set aside the award.

"Such denial may be made in original or amended pleadings; but if in amended pleadings such must be filed not less than seven days before the case proceeds to trial. In case of such denial the thing so denied shall not be presumed to be true, and if essential to the case of the party alleging them must be proved."

We hold that the allegations of the stated jurisdictional prerequisites, in appellee's petition, were sufficient, in the absence of special exceptions, and appellant effectually admitted the truth of them by failing to deny them by verified pleadings, as required in the quoted statute. We overrule appellant's first and second propositions, and, for like reason, its third proposition.

We overrule appellant's fourth proposition, in which it questions the trial court's definition of total incapacity, as follows: "By the term `total incapacity' as used in this charge does not mean an absolute inability to do any kind of work, but means one must be so disabled that he cannot perform the usual tasks of a workman, to the extent that he can obtain and retain employment."

We think the definition is sufficient, and substantially correct, so that no jury could reasonably be confused or misled by its language. Texas Employers' Ins. Ass'n v. Brock, Tex.Com.App., 36 S.W.2d 704; Bankers' Lloyds v. Seymour, Tex.Civ.App., 49 S.W.2d 508; Texas Employers' Ins. Ass'n v. Ray, Tex.Civ.App., 68 S.W.2d 290. The record shows that the accident involved resulted in appellee's right hand being literally torn from his arm, severing it just above the wrist, the effect reaching through muscles of the arm back into the victim's body. Appellant argues that from these facts the jury could well have found that appellee's incapacity was partial only, as defined in § 11, Art. 8306, or specific, only, as provided in § 12 of that Article, and that the quoted definition of total disability was misleading and confused the...