United Employers Casualty Co. v. Duncan

• Court: Texas Court of Appeals
• Writing for the Court: Smith
• Citation: United Employers Casualty Co. v. Duncan, 151 S.W.2d 354 (Tex. App. 1941)
• Decision Date: 14 May 1941
• Docket Number: No. 10964.,10964.
• Parties: UNITED EMPLOYERS CASUALTY CO. v. DUNCAN.

151 S.W.2d 354

UNITED EMPLOYERS CASUALTY CO. v. DUNCAN.

No. 10964.

Court of Civil Appeals of Texas. San Antonio.

May 14, 1941.

Appeal from District Court, Nueces County, 117th District; Cullen W. Briggs, Judge.

Suit under the Workmen's Compensation Act by G. L. Duncan to set aside an unsatisfactory award of the Industrial Accident Board in favor of United Employers Casualty Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Will R. Saunders, of Dallas, Kemp, Lewright, Dyer, Wilson & Sorrell, of Corpus Christi, and Henry D. Akin, of Dallas, for appellant.

Le Grand Woods and Kleberg, Eckhardt & Lowe, all of Corpus Christi, for appellee.

SMITH, Chief Justice.

In this Workmen's Compensation case Grover Cleveland Duncan, deceased, was the employee and United Employers Casualty the insurance carrier. The suit was brought by G. L. Duncan, decedent's brother, as an alleged dependent of the decedent under the Revised Statutes, Art. 8306, § 8a. Duncan recovered on a jury verdict, and the Casualty Company has appealed.

It seems to be conceded that the decedent lost his life as a result of accidental injuries sustained by him in the course of his employment, which gave rise to a cause of action in favor of his legal dependents for the compensation fixed by statute in such cases. The appeal is based upon the contention (1) that appellee failed to show, as he was required to do, that there was no beneficiary of the decedent higher than he in the scale of descent and distribution; (2) that the court admitted improper evidence upon that issue; (3) that there was no evidence, or insufficient evidence, to show appellee's dependency upon the decedent and that improper evidence was admitted upon that issue; (4) that the word "dependent" was incorrectly defined in the court's charge; (5) that the court erred in overruling appellant's motion for continuance.

It appears that the case was submitted to the jury upon only three special issues, in answer to which the jury found, first, that the decedent's average weekly wage was $20; second, that the appellee was dependent upon the decedent for support, under the court's definition of "dependent"; and, third, against a lump sum award. The court awarded to appellee the compensation fixed by statute, and no complaint is made of the amount of the award. It seems neither party requested the submission of any other issues, and none was submitted.

In its first proposition appellant contends that appellee did not meet the burden of showing and eliciting a jury finding that decedent left no heirs who would have a better statutory right than appellee to compensation for decedent's death. The pertinent statutory provision is that in case of accidental death of the employee the insurance carrier shall pay the compensation therein provided for to "the legal beneficiaries" of the deceased employee (Art. 8306, § 8), and that such compensation shall be "for the sole and exclusive benefit of the surviving * * * wife who has not at the time of the injury without good cause and for a period of three years prior thereto, abandoned her husband, and of the minor children, parents and stepmother, without regard to the question of dependency, dependent grandparents, dependent children and dependent brothers and sisters of the deceased employe; and the...