Traders & General Ins. Co. v. Lincecum

692

penses, fees and ^[*] temporary injunction enjoining Judge of Comanche mination of vester vester tice Dallas District Court suit is As ^[*] a determination of the stated ^[*] Company on notes Company if Harvester its suit. The Dallas made in that from other beginning, the Company, County, without no- payable proceeding in the to a final deter- moneys necessary county. issues involved issued the Har- District County Har- this mand instant case tition reflect grant notice circumstances ence any. judgment to the Since cause for further temporary above hearing, so no rendering ordered. notice existence authorities, allegations this trial court injunction court, imperative to given must proceedings, no in obedi pressing without reverse the pe re appellant’s first .contention is that injunction temporary granted notice, since been without allege press- bank did not that there was a necessity same, the issuance ing injury immediately imminent and that and'irreparable if it occurred. INS. CO. v. TRADERS & GENERAL LINCECUM. State, practice In is No. 13876. injunctions temporary suing without no disapproved long been tice where a Appeals of Texas. of Civil Court temporary restraining order would afford Fort Worth. protection adequate given until notice could be 10, March hearing and a had. The granting injunction is the an ex exercise an April 7, Rehearing Denied traordinary power and under sound rules equity power such should be exercised only with caution and when necessity clearly granting relief is shown. uniformly they hold courts power not exercise such without notice restrained, except parties to the the necessity pressing therefor irrepara threatened imminent and prevented. words, if not ble In parte injunction an ex authorize a without hearing, applicant must state essential him entitling elements to the re sought negative every lief reasonable petitioner might not, inference that' under supposable facts, other pertinent Angelo entitled relief. San Nat. Tex.Civ.App., Wright, Bank v. 66 S.W.2d refused; 804, error & G. International N. Ry. Co., Tex.Civ.App., Co. v. Anderson 239; 150 106 Tex. 156 S.W. S.W. Id. 499; Kirkland, Tex.Civ.App., Thurman v. 677; Texas Centennial 260 S.W. Central Exposition Greenwood, Tex.Civ.App., v. 813; Hopkins Frenchy, v. Tex. S.W.2d 184; Civ.App., Nelson 75 S.W.2d v. 373; Thompson, Tex.Civ.App., 64 Tex.Civ.App., v. Theis, S.W. Farb 290; Tex.Civ.App., Plough Moore, 681; Ferguson, Tex. S.W.2d Civ.App., Ricketts 416; p. Tex.Jur. seq.; sec. et sec. et p. seq.

.694 The suit was instituted employee, as against Traders & General carrier, Company, Insurance as insurance naming Corporation Panola employer. employee '«will referred appellee us as and the appellant. carrier as purposes For the appeal, it say be sufficient appellee’s for us petition, amended upon which trial was had,, shows that he employee was an the Panola Corporation, and appellant policy carried a of com-

pensation insurance, protected ap- which pellee, employee. as an That August 30th, 1932, he received an accidental injury, while in the course of employ- his ment. That notice and demand com- pensation were timely given; Industrial Accident Board heard and made a final claim, award on he, and that being award, dissatisfied duly with the appealed to the District Court of Rusk County, Texas. Appellee alleged that as a result

accident, he had strained and wrenched jerked leaders, his tore and backhand muscles, tendons and nerves loose in his side, back stripped and and ligament- ous attachments between the fifth lumbar vertebra the sacrum between ilium, sacrum and and the bones are torn separated; loose from all of which he had painful sustained serious and in- juries, nature, of such a character perma- extent as result his total and disability perform labor; nent manual that said condition has existed continuous- ly since the date of his and will throughout continue his life. He alleged weekly his wage $30.00, rate and' which, showed a state of facts if estab- lished, would him lump entitle to a sum settlement. pleas Several alternative made, Waldrop, Henderson, Caves & to the' effect (cid:127) that if his disability was not Lightfoot, Robertson & Gano and Dan total, partial; it was if it was not Worth, Johnston, appel- Fort P. permanent, temporary. Under each lant. pleas his of which, alternative alleged facts Yarbrough, Henderson, ap- Ed proven, would entitle him to- pellee. recovery percentage of his com- pensation so established the evidence. SPEER, Justice. (the carrier) answered appeal involves general special This claim for demurrer com- excep- tions, pensation' Compen- under Workmen’s discussed, which need not be (Vernon’s Act special plea sation Ann.Civ.St. art. denial and a seq.), growing out of alleged part 8306 et pleading amended injuries to an says, accidental while “And the bones thereof are torn employment. separated”, his alleged in course of loose and for the first

«95 sets the petition, back and appellee’s stripping ligamentous amended time alleged attachments between up a new of action from the lumbar vertebra cause different and the is a sacrum original petition, in his and between the sacrum ilium, upon and to and acted and that the thereof were presented bones claim to separated. torn Accident Board. loose and do not by the Industrial We present think the allegations A trial was had anything for the court to consider that judgment were verdict and issues. The was not properly before the Board under appellant per- appellee and favorable to the claim for a “wrenched back”. Both Court, appeal the Texarkana fected its words, wrench, back, very are com- Court, is Supreme order of 'prehensive in their meanings. Added to before us for review. great are this the numbers of cases in assign- its 48 Appellant discussed which our courts have held the that Work- propositions set 26 ments error under Compensation men’s a Act should receive in the brief. out means, liberal construction. Wrench “a 1, it is propositions and Under its twist; violent sprain injury by a and was without trial court claimed that jurisdiction the Back, twisting joint”. as in relating appel- hear and determine to man, means, to part “the hinder whole action, because claim alleged lee’s cause body”. or surface .of a man’s Webster’s the Board for a had been filed Dictionary. New International pleadings back”, in his while “wrenched appellee compensation for claiming was The given by construction our by us injury, as is stated a different such courts of Compensation the Workmen’s court Appellant insists that the above. should have Act is a in uniform that the Board not is verdict, it instructed given an court, but an body. administrative for the was error and further it has no hard and fast pleading set rules of testify as permit doctors court and may receive a claim for joint sacroiliac dislocation to a injury, contradistinguished as objections. its over specific one, from a upon investiga and may tion parte hear extrinsic and ex even It is so well settled in this state duty affidavits. Its investigate such rights parties in such claim extends every phase of the .to as are by cases this determined alone the injury, including naturally those that fol provisions Compensa of our Workmen’s low and proximately. are caused from Act, tion remedies, to the exclusion of all other that named in the claim filed. When suit requires it no citation of court, in filed all matters that the Board equally authorities. It is well settled that properly could have investigated and rights provided by and remedies the passed may upon incorporated in the statutory complied are Act with in must be pleading as a basis for the introduction of respects to mature all the claim testimony judicial sys in court under our adjudication by preparatory for the procedure. tem of pleading Such satisfactorily not courts when by determined proof are sometimes referred to as an Mingus the Industrial Accident Board. claim, enlargement of the but it does not 1084; Wadley, 115 Tex. S.W. independent mean that a new and cause of Surety Jetton, Co. Federal Tex. Com. action from that embraced in the claim App., 44 S.W.2d 923. may plead filed with the Board be. in tried injuries the court. Ciaims for accidental statutory requirements These employee filed, an are in most encompass, among things, giving cases, employer by employee Board, without of notice to the of the assist counsel, injury for which legal ance arid the Act it is compensation. ques wisely provided may claims There is no that he do so on the such notice timely tion here that was not blanks furnished the Board for that point given. by appellant made purpose, and the nature of his claim is given appellee frequently notice stated that the most couched in had few words. rule, resulting employee, sustained an accidental a as a in The knows nothing requirements back”. But when brings “wrenched he of pleadings in about court; upon enlarges required in he suit court is not he so word his claim effect, saying, in that his shall wrenched claim cover details of his torn consisted of injury; back leaders, muscles, the Board hear the lacerated evidence they specifical- and ligaments though nerves in as details appellee em- employed by was named Regardless ly the claim. in enumerated ployer ; ex- appellee said cross previously on testified of what the courts employ of Su amination was points, our that he in in these touching injured. Company Panola recently them covered preme Court has Appellant’s he counsel asked him if opinion comprehensive in a definite and in the so testified and answered Ins. Employers’ Texas Booth v. case of affirmative, “That and was if opinion then asked Ass’n, in which answered, “yes, correct”, many authorities. made to reference is testimony sir”. This was introduced case settles once That appellant course, ob- and, of without an conten against question involved here jection, request withdrawal. its propositions these appellant, tion of testimony to offered no are therefore overruled. by appellee. that offered contradict nine, Propositions four to No. 2 The court submitted issue. seventeen, inclusive, in one fourteen to way from a language: you find “Do sufficiency challenge the or another preponderance the evidence establish the fact of the evidence to injuries, any, accidental were sustained employ Panola appellee was in the August plaintiff, Corporation Pipe Line time 30th, 1932, the while an of injured. suffi the evidence was think We The Pipe Corporation?” Panola Line for determination cient to raise the issue “Yes”. answer was by appellant jury. by is contended the It This has been previously case tried and testimony to the appellee’s that because appealed to the and Texarkana Court employ the of Panola that was in effect upon there it was held testimony even less injured, Pipe Corporation Line was us, than is before that the as to verdict being objected to a mere conclusion and employment by Company the testimony the upon ground, rendered supported by was the evidence. Traders legal evi incompetent and therefore no & Lincecum, Gen. Ins. Co. v. Tex.Civ. the justify the court was to dence before App., 81 Writ error was jury. to The issue the submission of that granted by Supreme Court, the' and the purported be complained to statement Appeals’ Court of Civil decision was re- certainly fact, such as was one but on grounds. versed Traders & Gen. even examination or would of cross admit Lincecum, 220, Ins. Co. 130 Tex. the 'disprove to contradictory S.W.2d 585. appellee. by assertion cannot said be assignments discussed, can state Under later be that before a man for whom he remanded, working, give case must be is or the name em reversed and of his expressed ployer, upon have procure he would have we ourselves the foregoing points in an in evidence the effort aid the and introduce contract of upon employment, writing; in court another trial. if or if not employer writing, bring his into court 13, inclusive, Propositions 10 to both give the an oral details of contract complain of the manner which the employment; if employer should court issues submitted on whether or not testify employee was working that the appellee temporary had received total dis- him, would such an assertion be none the ability partial disability. propo- These less a conclusion than the same statement adequate assignments based on sitions If employee. employed one from error must be sustained. corporation theory a the same absurd Appellee alleged alternatively, him if he would confront re partial tempo permanent, total total quired agent prove t'o that an or official rary partial disability. Appellant total corporation employed him, had allega and all each of these controverted proof up with then follow this tions a denial. The evidence agent or official authorized issues, they raise as to these was such act, corporation prove and then to so affirmatively been submitted should have purported employer was in fact a unconditionally. corporation, with an effective charter un legally act. der which could Such a fine special following: issues illustrate The appeal spun does not to us. theory points raised: you whom No. 4: from “Special he worked Issue Do find foreman preponderance testified that occurred while a evidence that in- similar this or Lincecum, total worked sustained plaintiff, H. year be- employment substantially a 30th, Answer: 1932? capacity August on have been fore the date he claims to Yes.” up- based injured. propositions are These you from find No. Do “Special Issue 6: twenty-ninth assignment of error. on its of the evidence preponderance com- No the matters error is shown in H. Lince- plaintiff, incapacity of total did plained of for the reason Answer: permanent? cum, any, if request present court Yes.” concede giving Even to of such an issue. Issue Special you “If answered issue, which the evidence raised you not answer need ‘Yes’ No. 6 then unnecessary deter- for us to we find is you 9, but if special issues Nos. 8 mine, exceptions appellant’s objections and ‘No’ No. 6 have answered will not ground charge Nos. special issues you will answer then re- when no authorize its consideration 8 and 9. Gulf, C. quest charge. was made “Special weeks, many Issue No. 8: How Conley, Ry. 113 Tex. & S. F. Co. any, you preponderance if do find from 32 A.L.R. S.W. plaintiff, of the evidence that the H. Lince- average weekly wage rate was, cum, totally incapacitated, allowed, compensation may and has continued or will continue from is controlled subsections 2 and 3 of 30th, (Not answered.) August 1932?” section Art. If the evi R.C.S. “Special you No. Do Issue 9: find from issue, dence another trial raises the preponderance of the evidence that provi will the court doubtless observe plaintiff, has suffered proper sions this statute with definition ” any partial incapacity, if any suffer ? used, properly terms placing (Not answered.) upon plaintiff. proof burden of the It well is now settled our Propositions 27, in 20 to both (appellant courts in that the defendant clusive, in challenge the manner which case) this to affirmative is entitled an worded, special claiming issues were that every submission of defensive issue raised places the of their the manner submission pleading this the proof (appellant) on burden defendant of right cannot be defeated the submission be, not, plaintiff as it should on the issues, of other offensive the to answers -example (appellee). An of issues may may negative which an answer that objections to which the submitted be made to such issues. This is defensive made, 1, special in is found issue No. may though true the answer to one even you pre find from which reads: “Do a contrary be other and create such plain ponderance of the evidence that the require a of a conflict declaration tiff, Lincecum, in received accidental contingent a The mistrial. difficulties day August, juries 30th A. D. procedure from a resulting “yes” very or A Answer “no”. 1932?” legal deprive party rights of his not one urged question was to the one here similar jury. Appellant’s general de before in before Traders & General Ins. Co. us sufficient raise the issue of nial was Burns, Tex.Civ.App., 118 S.W.2d v. temporary partial disability. Greer v. against there held the contention and we 519; Thaman, Tex.Com.App., 55 S.W.2d made, nothing add here and can now to Thibodeaux, Indemnity Texas Ins. Co. v. opinion. 268; 129 Tex. 106 S.W.2d Traders’ pointed require a The herein out errors Forrest, Tex.Civ.App., Ins. v. & Gen. Co. judgment rendered, and reversal 987; Indemnity Ins. Co. v. 78 S.W.2d Boland, for is remanded another trial. it therefore Tex.Civ.App., 31 writ S.W.2d refused; Ins. Traders & Gen. Co. v. Rehearing. Motion for On Tex.Civ.App., Shanks, writ S.W.2d refused; v. Ins. Wright Traders & Gen. Appellee, has a filed motion 314; Co., Tex.Com.App., rehearing, he urges in which we Wheeler, Underwriters Tex. Southern reversing judgment in erred Com.App., 123 S.W.2d court, submit, because of failure to trial or unconditionally, whether not complain Propositions 18 and 19 because any partial incapacity, as set had suffered not submit to the a court did opinion. is original claimed inquiring issue whether not in our out appellee’s fied in evidence full as total absence of to the extent there was a incapacity. injuries, partial gave opinion as his raising the issue of totally permanently in- by us are reviewed Lincecum was The cited authorities capacitated. motion, is called had in attention He further said this and our said, it was occasion to him since the to the in each case observe often fact that fact, injury; family prac- sub- in effect, had done his issues should that such point. baby, present tice raises delivered his then mitted when the evidence in the court think Likewise, things the case room. These we we are cited to Wheeler, require Tex. were sufficient submission Southern Underwriters v. Civ.App., partial incapacity. in which the issue of was shown court held that no error . question by ap- While the is not raised unconditionally, cer- submit, a failure to pellee motion, in 'his no com incapacity, when partial tain issues as to note, plaint point, on the we careful a answered, in disre- the issue was in fact reading opinion, former we an our complained of. gard preamble rule, nounced a the correctness of granted However, Court Supreme least, misleading we now At doubt. and reversed in that case writ of error may go cause trial court into holdings. Underwriters our Southern error another trial. The fourth Wheeler, Tex.Com.App., 123 S.W.2d paragraph opinion, the last from particular opinion In latter “Proposi beginning words: with these by us, was not of, complained as discussed etc., complain,” here tions and 19 out; rule was an- yet broad singled dis assignment there withdrawn. were essential nounced, such issues carrier) (by complaining, cussed one plead under defense to the association’s the court had not submitted to denial, any there was jury an1 issue from which it could be offered, they evidence must substantial determined whether or affirmatively and uncondition- submitted ally. substantially year, had worked by us in original The cases cited employment the same or similar as that opinion prin- effect. are to the same injured. engaged when ciple in these cases is not de- announced say, We now in lieu of the by appellee, he contends there was nied withdrawn, paragraph bur since the raise the no issue. evidence adduced proof upon appellee den of to show attempt we, While did average weekly that his wage rate must phases of the evidence on enumerate the fixed under 2 one of subsections or point opinion, we con original in the 3 of Article Section in the order question Briefly was raised. sidered that named, by competent must show evi he stated, employee shows the record employ dence that he worked in after he re light did work intervals ment engaged which he was injury; ceived the did chores about injured, employer whether for the same home, wood and getting such as not, substantially for the whole of the water, quarter carrying about a the water year immediately preceding injury, spring; of a that he had mile from before he can wage have his rate fixed wood; poles carried some on his back for subsection, under that done in this helped painting that he had do some on case. This becomes a fact for determina house; that he had hauled wood on jury, when one is tion had. In this mile; quarter case,- a wheel-barrow of a about alone testified to these matters, or six went in an automobile five but it often been held that miles, A often to the doctor. letter see party of an interested evidence uncor written any was introduced in roborated fact or circum Staff, Shaw, Dr. a member of the Clinic legally stance is not sufficient to establish expressed opinion doctor in which the a controverted fact. denial plaintiff’s injuries that he doubted if every legal phase controverted serious, referring to them as “oil-field” appellee’s right recovery. His 'testi Shipp, mony injuries. Dr. who for raised a fact back testified issue for determination part appellee, passed identified the letter of his and should have been Shaw, ner, Hooser, Dr. and stated that the Thraves business it. Tex. Com. Clinic had the manager authority App., S.W.2d and the authorities reports testimony upon in such If out cases and there cited. to make another Shipp name to them. Dr. be the same sign his testi- as it was at trial last, the court should submit that jury. to the mentioned, the mo- With the correction rehearing is overruled.

tion of CO. UTILITIES TEXAS

WEST HENDERSON. 8753.

No. Appeals Austin. Texas. Civil Court of Wright, Angelo, A. W. of San 8, 1939. March Douthit, Harwell, Wagstaff, Wagstaff & Abilene, for appellant. Rehearing March Denied Crocker, Hardeman, R. D. B. C. C. appel- Angelo, Hughes, San

G. lees. justice.

McClendon, chief appeal of This is the second this case primarily boundary. one of See Tex.Civ.App., shall We endeavor, practical, avoid as far as adduced on the reiteration the evidence trial; opin- to the former referring first pointing regard, and out where- ion in this second differed in evidence trial substantially from that on the first. Appellee (plaintiff below) rec- holds the survey, Kendall ord title the Peter appellant. which he sued holds latter surveys the record title senior to the (Peter Duffy) (Jacob Schmidt). and 643 Appellant also asserted title under five .years limitation, and ten statutes of Ver- non’s boundary arts. 5510. The Ann.Civ.St. issue hinges v/hether 171 boundary (See and 643 a common map page 371). If so the Ken- surveys dall conflicts the senior appellant’s record title must prevail. jury upon The trial was ato special issue, single under which the pecan “that found forked refer- tree being red into the' evidence as about 91½ of a mound varas west stone bank river,” pecan the Concho was “not the original described tree of in the field notes 171, Duffy survey Peter No. call its northwest corner.” court declined submit of limitation. judgment was for for. title

Case Details

Case Name: Traders & General Ins. Co. v. Lincecum

Court Name: Court of Appeals of Texas

Date Published: Mar 10, 1939

Citation: 126 S.W.2d 692

Docket Number: No. 13876.

Court Abbreviation: Tex. App.