125 S.W.2d 1084 | Tex. App. | 1939
This is a suit under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art.
The first proposition advanced by plaintiff in error is: "Since it is reversible error for the trial court to permit a jury to take the pleadings with them into retirement if they contain matters that could not be properly used as evidence, it was reversible error for the trial court in this case, which involved an appeal by the insurance carrier from the award of the Industrial Accident Board in favor of the employee, to permit the jury, over the objection of the insurance carrier, to take with them into retirement the pleadings in the case which had attached to them, as exhibits, copies of the awards of the Board in favor of the employee." In our opinion this proposition presents error. Plaintiff *1086 in error timely objected to the action of the court in delivering to the jury the pleadings in the cause and in permitting them to carry same into the jury room during their deliberations. This objection was overruled by the court and the jury were permitted to take into the jury room plaintiff's original petition, plaintiff's supplemental petition, defendant's original answer and cross action, to which was attached the two awards of the Industrial Accident Board, and defendant's first amended original answer and cross action. The two awards by the Industrial Accident Board are:
"On this 17th day of July, 1936, after due notice to all parties, came on to be considered by the Industrial Accident Board claim for compensation by Willard Bobbitt against Federal Underwriters Exchange, and Board finds and orders:
"On April 4th, 1936, Double Dip Ice Cream Company, a subscriber to the Employers Liability with insurance carried by Federal Underwriters Exchange who had in its employ Willard Bobbitt whose average weekly wage was $14.75 and compensation rate $8.85 per week under the Act. On said date Willard Bobbitt suffered injuries in course of employment resulting in an original hernia for which he is entitled to make recovery.
"Willard Bobbitt is ordered to submit himself to surgical operation at the hands of a surgeon to be arranged and agreed upon by and between Willard Bobbitt and the Federal Underwriters Exchange on a date not earlier than July 27th, 1936, and not later than August 6th, 1936, unless operation is performed on an earlier date by agreement between the parties. Such operation shall be performed at a hospital to be designated by the operating surgeon, and the reasonable expense incident thereto shall be paid by Federal Underwriters Exchange. If Willard Bobbitt undergoes operation and it proves successful and effects a cure he shall recover and have paid to him by the Federal Underwriters Exchange $8.85 per week for the definite period of 26 consecutive weeks from date of operation.
"An attorney's fee of 15% on the unpaid portion of this award, is ordered paid out of installment payments by Federal Underwriters Exchange to Webb Webb, of Sherman, Texas, attorneys for Willard Bobbitt. Previous payments of compensation, if any, and attorney's fees shall be deducted from this award.
"If either party fails or refuses to comply with this award upon notification of this fact claim will be set and heard upon its merits and further award made and entered by the said Board.
"That the Federal Underwriters Exchange has failed and refused to furnish and provide surgical operation directed to be and performed upon Willard Bobbitt. Therefore, award of July 17th, 1936, is set aside, cancelled and held of no binding force or effect, and the following award entered as the award of the Board, to-wit:
"Willard Bobbitt, Employee, vs. Double
Dip Ice Cream Company, Employer,
Federal Underwriters Exchange, Insurer. No. V-15102.
"On this 31st day of August, 1936, after due notice to all parties, came on to be considered by the Industrial Accident Board, claim for compensation by Willard Bobbitt against the Federal Underwriters Exchange, and Board finds and orders:
"In April 4th, 1936, Double Dip Ice Cream Company, a subscriber to the Employer's Liability Law with insurance carried by Federal Underwriters Exchange had in its employ Willard Bobbitt whose average weekly wage was $14.75 and compensation rate $8.85 per week under the Act. On said date Willard Bobbitt suffered injuries in the course of employment resulting in his total incapacity for performance of labor for an indefinite period in the future not exceeding 401 weeks.
"Federal Underwriters Exchange is ordered to pay Willard Bobbitt $8.85 per week for an indefinite period in the future not exceeding 401 consecutive weeks from April 4th, 1936, unless charged by subsequent award of the Board.
"An attorney's fee of 15% on the first $1000 and 10% on amounts in excess of said first $1,000 paid on this award, is ordered paid out of installment payments by Federal Underwriters Exchange to Webb Webb of Sherman, Texas, *1087 attorneys for Willard Bobbitt. Previous payments of compensation, if any, and attorney's fees shall be deducted from this award."
These awards formed no part of the evidence to be considered by the jury and were admissible in the record only for the purpose of showing jurisdiction of the trial court. Fidelity Union Casualty Co. v. Cary, Tex.Com.App.,
By its fifth proposition plaintiff in error complains of the action of the trial court in permitting defendant in error to testify over objection timely interposed as follows:
"Q. Now, then, did you ever refuse to be operated on by this Company? A. No, sir.
"Q. Have they ever offered to operate on you? A. No."
It is our opinion that this proposition also presents error. As set out above, the Industrial Accident Board made two awards in this case. The first was for a specified sum of money per week for a fixed number of weeks, and, in addition, required plaintiff in error to furnish and provide defendant in error with an operation for hernia within the time fixed by the Board. The second award set the first one aside for the failure of plaintiff in error to furnish and provide the operation for hernia, and fixed defendant in error's compensation the same as in the first award for an indeterminate period not to exceed 401 weeks. This action by the Industrial Accident Board concluded the question of an operation for hernia. The Board and not the court had authority to require an operation. On this question the case of Tally v. Tex. Emp. Ins. Ass'n,
Plaintiff in error also complains of the conditional submission of certain issues to the jury. We suggest, without passing upon this question in view of another trial, that all disputed issues of fact be unconditionally submitted to the jury for determination with the burden of proof properly placed at the beginning of each issue. Southern Underwriters v. Wheeler,
All other propositions not discussed herein have been carefully examined, are believed to be without merit, and are overruled.
For the reasons indicated above, the judgment is reversed and the cause is remanded.