Standard Insurance Co. v. Teague Brick & Tile Co.

425 S.W.2d 63

Tex. App.

1968

Check Treatment

The STANDARD INSURANCE COMPANY, Appellant, v. TEAGUE BRICK & TILE COMPANY et al., Appellees. The STANDARD INSURANCE COMPANY, Appellant, v. Townsend CLARK, Individually and d/b/a Clark & Clark, Appellee.

Nos. 4661, 4662

Court of Civil Appeals of Texas. Waco.

Feb. 15, 1968.

Rehearing Denied March 7, 1968.

Dissenting Opinion March 7, 1968.

Scar tissue built up from the white of the eye. Before it affected the cornea, the scar tissue was removed. Plaintiff lost time from work from this operation, but, thereafter, on February 5, plaintiff‘s eye was 20-20 and clear. On March 11, the vision was 20-20. On April 2, the doctor examined plaintiff and found no complaints, no reoccurrence of difficulties, and that his vision was 20-20.

Loss of time from work is not a loss of vision within the meaning of the Workmen‘s Compensation Statute, Article 8306, Section 12, which provides:

For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided, a weekly compensation equal to sixty per cent (60%) of the average weekly wages of such employee, but not less than Nine Dollars ($9) per week nor exceeding Thirty-Five Dollars ($35) per week, for the respective periods stated herein, to wit:

For the total and permanent loss of the sight of one (1) eye, sixty per cent (60%) of the average weekly wages during one hundred (100) weeks.

(Emphasis ours)

Article 8306, Section 6, would authorize recovery by plaintiff by reason of a general injury, which was the cause of the employee being unable to work. The jury rejected general injury and plaintiff does not contend the jury‘s findings thereon are erroneous. If plaintiff had lost his eye, he would have been entitled to compensation for the loss of the eye, even though he did not lose five minutes from work.

Considering the evidence most favorable to the finding of the jury in answer to Special Issue No. 4, plaintiff‘s no evidence points are overruled. Considering all of the evidence and the entire record in passing upon the insufficient evidence points of plaintiff, such points of error are overruled.

Great American Indemnity Co. v. Stultz, 56 S.W.2d 200 (1932, Tex. Civ.App., error ref.); ; .

All points of error of plaintiff are overruled. Judgment of the trial court is affirmed.

John L. Bates, Waco, for appellant.

W. A. Keils, Jr., Teague, for appellees.

OPINION

WILSON, Justice.

Judgment in these non-jury actions was rendered August 16, 1967. There was no motion for new trial. The appeal bond was filed September 7, 1967. No notice of appeal in any manner prescribed by Rule 353, Texas Rules of Civil Procedure was given.

On August 25, 1967 a letter from appellant‘s counsel addressed to the district clerk was received by the clerk. It referred to the style and number of the cause and read: “I would appreciate your furnishing me with an estimate of the necessary costs to be used in determining an appeal bond to appeal the above case to the Court of Civil Appeals.” An appeal bond was filed September 14.

The letter inquiring as to an estimate of the amount of costs is not a notice of appeal. We have no jurisdiction. The appeals are dismissed.

ON REHEARING

McDONALD, Chief Justice (dissenting).

I respectfully dissent. Counsel for appellant addressed to the District Clerk the following letter, which was timely received and filed by the Clerk:

“Law Offices

JOHN L. BATES

Suite 308 Medical Arts Bldg.

Waco, Texas

August 25, 1967

“Clerk

Eighty Seventh Judicial District Court

Fairfield, Texas 75840

RE: Standard Insurance

vs.

Teague Brick & Tile Co. et al

Cause No. 6042 & 6043B

“Dear Sir:

“I would appreciate your furnishing me with an estimate of the necessary costs to be used in determining an appeal bond to appeal the above case to the Court of Civil Appeals.

Very truly yours,

/s/ John L. Bates

John L. Bates”

Rule 353 TRCP authorizes 2 methods of giving notice of appeal: (1) In open court as therein provided, or (2) “filed with the clerk“. A notice of the latter type “shall be sufficient if it state the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment.”

Such rule “will be liberally construed in favor of the right of appeal“.

Hunt v. Wichita Co. Water Improvement Dist., 147 Tex. 47, 211 S.W.2d 743, 744.

The foregoing letter states the number and style of the cases, the court in which same were pending, and under a liberal construction in favor of the right to appeal, may be reasonably construed as notice of an intention to appeal, or that appellant desires to appeal to the Court of Civil Appeals. And appellant thereafter timely filed its appeal bonds.

I believe this court has jurisdiction.