Wood v. Traders' & General Ins. Co.

• Decision Date: 08 March 1935
• Docket Number: No. 13111.,13111.
• Citation: 82 S.W.2d 421
• Parties: WOOD v. TRADERS' & GENERAL INS. CO.
• Court: Texas Court of Appeals

82 S.W.2d 421

WOOD v. TRADERS' & GENERAL INS. CO.

No. 13111.

Court of Civil Appeals of Texas. Fort Worth.

March 8, 1935.

Rehearing Denied April 12, 1935.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Action by Arthur Trowell Wood against the Traders' & General Insurance Company to set aside an award of the Industrial Accident Board under the Workmen's Compensation Law. From a judgment denying plaintiff any relief, plaintiff appeals.

Affirmed.

Clark & Clark, of Fort Worth, for appellant.

Lightfoot & Robertson and Nelson L. Scurlock, all of Fort Worth, for appellee.

DUNKLIN, Chief Justice.

Arthur Trowell Wood sought recovery of compensation under provisions of the Workmen's Compensation Law (Vernon's Ann. Civ. St. art. 8306 et seq.), for injuries sustained by him while working as an employee of the J. Ernest Loyd Sand & Gravel Company, who was a subscriber under that law and who carried a policy of insurance with the Traders' & General Insurance Company, the defendant in the case, and plaintiff has appealed from the judgment denying him any relief.

According to allegations in his petition and evidence introduced by him on the trial, while plaintiff was employed as a workman in the construction of an underpass on a highway, he was struck in the chest by a beam some 3×10 feet in dimensions, as a result of which he has suffered pain and impairment of ability to work. According to his further allegations, within thirty days after the date of his injury he filed with the Industrial Accident Board his claim for compensation for his injury, and, before the same was heard on its merits, there was a compromise settlement of his claim with the defendant insurance company for the sum of $35, which was duly approved by the Board, acting under authority conferred upon it by section 12, article 8307, Rev. Civ. Statutes. He alleges that he was induced to make that settlement by representations made to him by Dr. Henry Trigg, the agent of defendant who examined him, that plaintiff's injuries were not serious and that he would fully recover therefrom within a few days, which said representations were false, and upon discovery of such falsity he applied to the Board to set aside the compromise agreement and its order approving the same and in lieu thereof award him compensation as first claimed, which application was refused, and from such refusal he appealed to the district court, where the case was tried.

In addition to a general demurrer and special exceptions to plaintiff's petition, defendant filed a general denial, and specially invoked the compromise settlement alleged in plaintiff's petition and full payment of the $35 agreed to by plaintiff, together with the approval of the same by the Board as a complete bar to plaintiff's suit.

At the conclusion of the testimony, the trial court granted defendant's motion for an instructed verdict in its favor, manifestly upon the theory that the compromise settlement was a bar to the suit in the district court. And that ruling is challenged here upon the contention that the evidence introduced made a prima facie showing of right in plaintiff to set aside and cancel the compromise settlement of the claim under his allegation that he was induced to enter into it by the alleged misrepresentations of Dr. Trigg, defendant's servant, alleged in plaintiff's pleadings, and referred to above.

Plaintiff testified that his injury occurred on Saturday, April 29, 1933. He continued to work the rest of that day. The next morning, which was Sunday, he went to the City County Hospital, where Dr. Cochran examined his chest, which was then pretty well inflamed; ordered an X-ray picture taken of it, which was taken by Dr. Crawford, another doctor in the same institution; bound it with adhesive tape; and told him that he had a broken chest bone. Monday morning following, his chest was paining him and he could not sleep well on account of the pain and shortness of breath. Eight days after his return from the hospital he made a second visit there, where more adhesive plaster was applied to take the place of the first used, but which had slipped off.

Plaintiff testified as follows:

"About May 8th, I went up to see the lawyer about the case. I didn't know what his name was to start with, but, after I found out later, his name was Mr. Craik. I don't know whether he offices with Mr. Houtchens here, but I know Mr. Houtchens' office is there close to his office, in the same group of offices in the same building. You asked if I consulted Mr. Craik about the matter. I don't know just what you would call it; I asked him what I ought to do about it, is all I asked him. I didn't employ him to file a claim for me before the Industrial Accident Board, because I didn't have anything to employ him with, but I did this, I asked him if he would see into it for me and see if I could get my workman's compensation. I didn't have any money to pay him with, Mister. The only way that I could see that he got any pay was when I got that $35.00 he taken some of that, so, I reckon then is when he was paid, with this money that I got from the insurance company. I knew, all right, that he was not representing the insurance company.

"Q. The fact of the business is he was acting for you in the matter, wasn't he? A. Well, I figured he was.

"Q. And that was about May 8th that he made out a claim for compensation? I will show you a copy of it (exhibiting copy to the witness). A. Yes, sir, I wrote this all right. I know my writing. I remember writing that."

A copy of the claim referred to was introduced in evidence. It bore date May 8, 1933, and same, together with notice of injury, was filed with the Industrial Accident Board on May 9, 1933, both signed by plaintiff and witnessed by Mr. J. H. Craik, his attorney.

Two or three weeks after his injury, which was one or two weeks after his claim was filed, he went to see Dr. Trigg, an employee of defendant. Dr. Trigg felt of plaintiff's chest and told him that: "I would be all right in a few days, that it wouldn't amount to anything." He said he relied upon what Dr. Trigg told him and was induced thereby to settle his claim for $35 paid to him by defendant upon his compromise agreement, hereafter referred to. He further testified that Dr. Niess, the city-county doctor, had waited on him ever since he got hurt. "He never asked me nothing about my injury; of course he asked me how I got hurt, and I told him I got hit in the chest, and he waited on me and give me something. He never did say if it was a pretty bad injury. * * * I remember I went to Dr. Niess one time before I made the settlement with them, and...