Travelers' Ins. Co. v. Peters

• Decision Date: 01 February 1926
• Docket Number: (No. 1336.)
• Citation: 280 S.W. 310
• Parties: TRAVELERS' INS. CO. v. PETERS et al.
• Court: Texas Court of Appeals

280 S.W. 310

TRAVELERS' INS. CO. v. PETERS et al.

(No. 1336.)

Court of Civil Appeals of Texas. Beaumont.

February 1, 1926.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by Theresa Peters for herself, as the surviving wife of William Peters, and as mother and next friend of Joseph Peters against the Travelers' Insurance Company, to set aside an award and order of the Industrial Accident Board. Judgment for plaintiffs, a new trial was denied, and defendant appeals. Reversed and remanded.

Oliver J. Todd, A. D. Moore, and Chas. S. Pipkin, all of Beaumont, for appellant.

Howth, Adams & Hart and David E. O'Fiel, all of Beaumont, for appellees.

O'QUINN, J.

This suit was brought by Theresa Peters for herself, as the surviving wife of William Peters, and as mother and next friend of Joseph Peters, a minor, alleged to be the child of William and Theresa Peters, against the Travelers' Insurance Company, to set aside an award and order of the Industrial Accident Board of the state of Texas denying compensation to appellees for the death of William Peters, alleged to have resulted from an injury sustained by him in the course of his employment as an employé of the Gulf Refining Company, which said company was a subscriber under the Workmen's Compensation Law, and appellant its insurer.

In addition to other formal allegations, plaintiffs in their amended original petition alleged that William Peters received an injury in the pelvic region of the body while in the course of his employment, which resulted in a stricture which prevented the passage of the urine, and that his death was due to poisoning caused by retention of the urine. They further alleged that, if William Peters' death did not result solely from the injury, the injury so aggravated a previous affliction or disease as to hasten and cause his death. This latter plea was evidently in answer to defensive matter pleaded by appellant.

Defendant answered by general demurrer, general denial, and specially that Peters' death did not result from any injury received in the course of his employment, but that same was caused solely by gangrene or blood poisoning arising out of a severe case of venereal disease of long standing, in that the retention of urine was caused by scars and strictures which were the result of treatment of said disease. Defendant further specially answered that Joseph Peters, minor son of deceased, was not a legitimate child, but was born out of wedlock, and could not inherit from his father, and therefore was not entitled to recover.

The case was tried to a jury upon special issues, in answer to which the jury found (1) that William Peters, the deceased, received his injuries in the course of his employment; (2) that said injury was the sole and direct cause of his death; (3) that a pre-existing disease was not the sole and direct cause of his death; (4) that his death was not due to the combined effect of a pre-existing disease and the injury received by him; and (5) the average weekly wages earned by the deceased. In answer to special issues proposed by defendant, the jury further found (1) that William Peters and Theresa Peters were not legally married at the time that the minor Joseph Peters was born; (2) that there were strictures and pus pockets in the urinal tract of William Peters at the time he received his injury; (3) that said strictures and pus pockets were neither of them the result of gonorrhea; and (4) that the strictures which they had found existed at the time the injury was received were not the cause of the suppression of the urine. On the answers of the jury, judgment was rendered in favor of appellants for $12.46 per week for 360 weeks, amounting to $4,485.60, one-half each to Theresa Peters and Joseph Peters, and one-third of the amount awarded to each of the plaintiffs was adjudged to their attorneys. Defendant's motion for a new trial was overruled, and it has appealed.

Appellant first presents as fundamental error that, in view of article 5246-15, Texas Complete Statutes 1920, or Vernon's Ann. Civ. St. Supp. 1918, the court erred in not...