Western Indemnity Co. v. Corder

• Decision Date: 23 February 1923
• Docket Number: (No. 908.)
• Citation: 249 S.W. 316
• Parties: WESTERN INDEMNITY CO. v. CORDER.
• Court: Texas Court of Appeals

Page 316

249 S.W. 316

WESTERN INDEMNITY CO. v. CORDER.

(No. 908.)

Court of Civil Appeals of Texas. Beaumont.

February 23, 1923.

Error from District Court, Jefferson County; D. P. Wheat, Judge.

Action by W. J. Corder against the Western Indemnity Company to set aside an award of the Industrial Accident Board, and to recover compensation under the Workmen's Compensation Act. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Orgain & Carroll, of Beaumont, for plaintiff in error.

Howth & O'Fiel, of Beaumont, for defendant in error.

WALKER, J.

This was a suit by defendant in error, designated herein as appellee, against plaintiff in error, designated herein as appellant, to recover compensation under the Texas Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, art. 5246—1 et seq.). On or about the 26th day of June, 1918, appellee was employed as a ship carpenter by J. N. McCammon, a ship builder, at Beaumont, Tex., who was a subscriber under the Workmen's Compensation Act, and carried a policy of indemnity with appellant. The following agreement was made a part of the record by the parties:

"It is agreed by the plaintiff and the defendant that the defendant, Western Indemnity Company, has paid workmen's compensation insurance at the maximum rate of fifteen ($15.00) dollars per week from July 4, 1918, up to February 8, 1919, totaling the sum of four hundred and sixty-five ($465.00) dollars.

"It is further agreed that on or about June 26, 1918, W. J. Corder, the plaintiff, was an employee of J. N. McCammon, and was injured while in the course of his employment, and that the said J. N. McCammon carried workmen's compensation insurance with the Western Indemnity Company for the benefit of his employees; that an award had been made by the Industrial Accident Board of the state of Texas, and that within 20 days thereafter W. J. Corder gave notice that he would not be bound by said award, and in 20 days thereafter instituted this suit to have said award set aside."

The case was tried to a jury on special issues, and on their answers, to the effect that appellee was totally incapacitated, as that term is used in the Workmen's Compensation Act, judgment was entered in his favor for compensation at the rate of $15 per week for the full compensation period, less the amount paid as shown by the above agreement.

By many assignments and propositions, appellant complains of the court's charge primarily on the ground that certain issues were not submitted; that the jury was not permitted to answer said issues duly submitted, and that the charge was on the weight of the evidence, and, as worded, "was calculated to create in the minds of the jury the impression that the court was of the opinion that plaintiff had suffered total permanent incapacity." Without analyzing the pleadings of appellant, the evidence, and the charge of the court, we believe it is sufficient to say that in our judgment every issue raised on behalf of appellant was duly submitted by the court's charge.

Issues Nos. 1, 2, and 3 of the court's charge were as follows:

"(1) Was W. J. Corder totally incapacitated from work on June 26, 1918? Answer Yes or No as you find the facts to be.

"(2) If you have answered Yes to the previous question, then (a) fix the number of weeks of such total incapacity; and (b) was such total incapacity, if any, permanent? Answer as you find the facts to be.

"(3) Has W. J. Corder at any time since June 26, 1918, recovered to the extent that he has a wage earning power equal to that on the date of his alleged injury, and, if so, give the date of such recovery? Answer as you find the facts to be."

These issues were followed by the following instruction:

"You are further instructed relative to the foregoing issues that if the injury, if any, to plaintiff, W. J. Corder, rendered him totally incapacitated, as that term is above defined, and if you shall further find that such total incapacity was permanent, or if you shall find that such total incapacity to said W. J. Corder will cover a period of at least 401 weeks, or longer, dating from June 26, 1918, then and in that event you need not answer any of the following questions or any of the other questions submitted except issue No. 14 in this main charge, which issue No. 14 inquires about the average weekly wages of said W. J. Corder."

The other issues submitted by the charge presented the defenses relied on by appellant, who assigns error against the instruction above quoted on the ground that it was not only the duty of the court to submit such issues, but also permit the jury to answer them. We do not concur in that proposition. Every issue raised by the pleadings and evidence should be submitted to the jury, but this does not require that the court must permit or require the jury to answer all the issues submitted. When the jury has all issues before it, it is now the established practice in this state for the trial court to instruct the jury that an affirmative or negative answer to certain issues relieves them of the duty of answering certain other issues, and that a verdict may be returned under that instruction without answering all issues submitted. So in this case the answers made by the jury and accepted by the court were determinative of the case, and, in fact, negatived all defenses raised by appellant. The jury was not deprived of an opportunity to consider appellant's defenses, but with all the questions before it, under the court's charge, answered those fixing liability against it, thereby negativing all issues relied on by appellant.

We do not think the charge was in any sense on the weight of the evidence, nor that it gave undue prominence to the contention of appellee, nor that it was "calculated to create in the minds of the jury the impression that the court was of the opinion that plaintiff had suffered total permanent incapacity." As said above, the court's charge was in accordance with the established practice of this state.

The trial court defined "total incapacity" as follows:

"Relative to the foregoing issues you are instructed that wherever in this charge `total incapacity' is mentioned or inquired about, it means that one must be so injured that he becomes disqualified from performing the usual tasks of a workman to such an extent that he cannot procure and retain employment."

Both appellant and appellee accepted this as a proper definition, and neither filed any exception thereto. As sustaining the court's charge, we quote as follows from 4 Words & Phrases (Second Series) 942:

"Under a benefit certificate payable in case insured should become totally incapacitated to perform manual labor, `total incapacity' means inability to perform sustained manual labor so as to enable one to earn or assist in earning a livelihood. A condition of absolute and complete incapacity to do any manual labor ought not to be regarded as the true construction of the language of the certificate. One who has power to use his hand or hands at labor for a brief effort only, and who is lacking in power to sustain the effort for a sufficient length of time to make the result thereof of any benefit to him in the way of assisting in his support, is for all practical purposes and in every actual sense totally incapacitated from performing manual labor. Grand Lodge Brotherhood of Locomotive Firemen, v. Orrell, 69 N. E. 68, 69, 206 Ill. 208."

As shown by bill of exception No. 1, counsel for appellee, in making his closing argument, over the objection of appellant "argued to the jury that by the term `total incapacity' as used in the court's charge meant total incapacity from following the work he was following at the time of his injury." Appellant objected to this argument on the ground:

"That it was improper, calculated to impress the jury in the belief that total incapacity meant total incapacity to follow only the work that plaintiff was following at the time of his injury, that the argument was an erroneous statement of the law to the jury, in that by total incapacity was meant a total incapacity to perform the usual tasks of a workman to such an extent that he could not procure and maintain...