source: Caselaw Access Project

author: HICKMAN, C. J.

license: Public Domain

text:
    HUTSON v. BASSETT et al.
    No. 794.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 30, 1931.
    Turner, Seaberry & Springer, of Eastland, for appellant.
    Taylor, Muse & Taylor, of Wichita Ealls, for appellees.
   HICKMAN, C. J.

Mrs. Beda Garrett Hutson, wife of appellant, died testate at Wichita Ealls, Tex., on July 5,1927. By her will she gave to her husband $1, and all the balance and remainder of her property to her sister, Mrs. Mary Garrett Bassett, and her brothers, J. M. Garrett and Vanmeter Garrett. Mrs. Bassett and J. M. Garrett were named executrix and executor without bond. The two brothers transferred their interest in the property in controversy to Mrs. Bassett. This suit was instituted by Mrs. Bassett, joined pro forma by her husband, against appellant, alleging the conversion by him, subsequent to the death of his wife, of certain personal property. Three separate lists of articles claimed to have been converted are set out in the petition. One list was alleged to have been the community property of the deceased and appellant; another list the separate property of the deceased ; and the other list the separate property of appellee Mrs. Bassett. Each of the articles was valued separately in the petition. In her prayer for relief, appellee prayed for the possession of all of said ‘ property, and in the alternative for damages for the value of those articles, if any, not delivered. Appellant’s answer alleged, among other things, certain expenditures claimed to have been made by him on account of the last sickness and funeral of his wife, and the amount thus expended was pleaded as an offset. The case was submitted to a jury on special issues, and on the verdict judgment was rendered in favor of appellee for $232.20, after allowing the offset to which the jury found appellant was entitled. Many objections and exceptions to the court’s charge were seasonably filed by appellant, and the questions here presented are largely those based upon the rul-tags' of the trial court on those exceptions and objections. To set' out the charge and the exceptions thereto would lengthen the opinion without profit. We have determined that most of the exceptions were good and should have been sustained, and shall dispose of the controlling questions presented by the following rulings:

The terms, “community property" and “separate property,” used in the charge, are legal terms, and should have been defined. Article 2189, R. S. 1925; Speed v. Gilliland (Tex. Civ. App.) 18 S.W.(2d) 762.

It was not necessary that appellant specially request charges defining these terms. His objections to the charge pointing out these omissions were sufficient to preserve the question for review. Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570.

In a suit for conversion of personal property, the measure of damages is the value of the property converted at the place of seizure on the day of conversion, with interest on that value. Tucker v. Hamlin, 60 Tex. 171; Ara v. Rutland (Tex. Com. App.) 215 S. W. 445; Touree v. Bradley (Tex. Civ. App.) 275 S.W. 410; Risinger v. Bank (Tex. Civ. App.) 12 S.W.(2d) 242.

Appellee sued for the possession of the property, and in the alternative for damages. The judgment rendered in this cause was .entered on that basis. In such case the measure of damages is the value of the property at the time of the trial, or when redelivery is refused after restitution is ordered. Morris v. Coburn, 71 Tex. 406, 9 S.W. 345; Hickman v. Aldridge (Tex. Civ. App.) 21 S.W.(2d) 341, and authorities there cited.

There was submitted to the jury only the total value of each group of items involved in the suit. In the judgment the court found the value of certain articles which appellant still has in his possession. Since, under the judgment, appellant had the privilege of returning any one of the articles recovered, instead of paying its value, there should have been a finding of the jury on the value of each of 'the several articles making up the aggregate. Hoeser v. Kraeka, 29 Tex. 450; Hickman v. Aldridge, supra.

The court was not authorized to make findings as to the value of each article and in that manner supply the deficiency in the Verdict of the jury. Dysart v. Terrell (Tex. Civ. App.) 70 S. W. 986; Ratliff v. Gordon (Tex. Civ. App.) 149 S. W. 196.

We do not pass on the question as to whether the executor and executrix, as such, should be made parties upon the next trial, but call attention of appellee to the fact that that contention was made in oral argument on submission, and the case of Hardin v. Hardin (Tex. Civ. App.) 1 S.W.(2d) 708, is relied on by appellant as authority for the contention. The facts in this record are too meager to afford a basis for determining that question.

For the errors noted, the judgment of the trial court will be reversed, and the cause remanded.


author: LANE, J.

text:
    AMERICAN MUT. LIABILITY INS. CO. et al. v. THOMAS.
    No. 9489.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 15, 1931.
    Rehearing Denied Feb. 5, 1931.

      Baker, Botts, Parker & Garwood, and John P. Bullington, all of Houston, for appellant Insurance Company.
    Howell & Howell, of Beaumont, for appellant Myrtle Kirtman Thomas.
    George P. Préndergast and Henry O’Dell, both of Galveston, and Charles E. Fernandez, of Franklin, La., for appellee.
   LANE, J.

One Oliver Thomas, now deceased, was on and for some time prior to the 1st day of January, 1929, in the employ of Young & Suder-man, Inc., a subscriber as that term is used in the Employers’ Liability Act of the State of Texas.

The American Mutual Liability Insurance Company, hereinafter, for convenience, called the insurance company, was the insurer for Young & Suderman under said act.

Oliver Thomas, who was the son of. Saul Thomas, was entitled to the benefits of the Employers’ Liability Act at the time of his death, which occurred on the 1st day of January, 1929, while he was engaged in the course of his employment.

After the death of Oliver Thomas, one Myrtle Kirtman, claiming to be the common-.law wife of the deceased, gave notice of his death in time and manner as required by law, and on the 16th day of January, 1929, filed with the Industrial Accident Board a claim for the death of Oliver Thomas, and the insurance company began to pay her compensation at the rate of $13.85 per week.

. Thereafter, on May 4, 1929, Saul Thomas, father of the deceased, Oliver Thomas, intervened in the claim demand of Myrtle Kirt-man pending before the Industrial Accident Board and filed his claim for compensation for the death of his son with said board. He contested before the board the payment of the compensation demanded by Myrtle Kirt-man.

On the 17th day of June, 1929, the board entered its final order and award in favor of Myrtle Kirtman, upon its finding that she was the common-law wife of Oliver Thomas at the time of his death. Thereafter Saul Thomas, in due time and manner, gave notice of his dissatisfaction with the award of the Industrial .Accident Board and in due time filed this suit in the district court of Galveston county, attaching to his petition a copy of the award of the board in favor of Myrtle Kirtman against the insurance company, making the insurance company and Myrtle Kirt-man and her attorneys, Howell & Howell, parties defendant.

The plaintiff alleged that he had employed attorneys Henry O’Dell, George Prendergast, and Charles E. Fernandes-- to institute his. suit and- had agreed to pay them for their .services one-third of any sum he might recover in the cause. 1-Ie alleged that at the time Oliver Thomas died he was earning a weekly wage of $23.08. He prayed that the award of the board be set aside and that he have judgment against the insurance company for the sum of $13.85 per week for a period of 360 weeks, beginning on the 1st day of January, 1929, for interest, and costs of suit, and that one.-third of such award be adjudged to his said attorneys.

The insurance company, which had also given due notice of its dissatisfaction with the award made by the Industrial Accident Board and which had been made a party defendant in this suit, filed its answer and cross-bill. It demurred generally to the allegations of the plaintiff, made general denial, and in the alternative it alleged that if Oliver Thomas did die as a result of injuries as alleged by tbe plaintiff and it is liable to tbe beneficiaries of tbe deceased under tbe terms of tbe Workmen’s Compensation Act of Texas, then in that event it offers to pay any amount for which it may be so liable to tbe person or persons entitled to tbe same; that by reason of tbe uncertainty as to whom such c.ompensation should be paid, it should not be charged with any portion of tbe cost incurred in this suit. It prayed that tbe award of tbe Accident Board be set aside and that it have judgment for costs of court and such further relief to which it may be entitled both in law and equity.

Defendant Myrtle Kirtman filed her answer and cross-action. She demurred generally to the allegations of the plaintiff’s petition, specially excepted to so much of tbe plaintiff’s petition as alleged that she was guilty of fraud which prevented plaintiff from sooner giving tbe notice of tbe death of Oliver Thomas and from presenting bis claim to the Accident Board, because such allegations were irrelevant and immaterial and have no bearing upon tbe issues involved and are prejudicial to the rights of defendant. She denied the allegations of the plaintiff’s petition.-

Becoming actor, she complains against tbe plaintiff, his attorneys, and the insurance company. She alleges the death of Oliver Thomas; his employment by Young & Suder-man, a subscriber; the issuance of the policy by the insurance company; that she was the common-law wife of Oliver Thomas at the time of his death, and is entitled to compensation as the sole beneficiary by reason of the death of Oliver Thomas; that at the time of the death of the deceased his weekly wage was $24, and that under the provisions of the Workmen’s Compensation Act she was entitled to a recovery from the insurance company of the sum of $13.85 per week for 360 weeks from the date of the death of the deceased; that in the, event she is mistaken with .reference to the term of the deceased’s employment, then she says that $4 per day was the usual wage paid others who were similarly employed as was the deceased by the same or similar employers; that the insurance company paid her compensation at the rate of $13.85 per week for a period of 16 weeks and then failed and refused to pay her any further sum; that upon such refusal she filed her claim with the Accident Board, and upon a hearing by such board it made an award in her favor; she alleged reasons why she should receive a lump sum settlement.

By supplemental petition, plaintiff alleged that Oliver Thomas was his son by his first wife, Georgiana, who was at the time of the death of said son also dead; that Oliver was the only child of himself and his deceased wife; that Oliver Thomas from time to time prior to his death contributed sums of money to him without which he could barely have existed, as he was unable to obtain the necessities of life; that his only means of living was from a small truck farm owned by his second wife; that his physical condition for more than twenty years was such as to incapacitate him from doing any hard labor. 1-Ie denied generally the allegations of defendant’s answer except such facts as he had alleged in his petition.

By supplemental answer the insurance company denied generally the allegations of the defendant Myrtle Kirtman.

All demurrers and special exceptions of both defendants were by the court overruled.

After instructing the jury as follows:

“A common-law marriage exists when- a man and a woman enter into an agreement to become husband and wife, and in pursuance to such an agreement, do live together and co-habit as husband and wife, and hold each other out to the public as husband and wife. Such agreement to- become husband and wife may be express or implied; and an ‘express agreement’ is'where the conduct of the parties with reference to the subject matter is such as to induce the belief in the minds of the contracting parties that they intend to do that which their acts indicate they have done.
“There can be no lawful agreement, either express or implied, to enter into a common-law marriage so long as either party to said contract has a living and lawful spouse, so in answering the question hereinafter submitted to you concerning the existence, or nonexistence, of an agreement between Oliver Thomas, and Myrtle Kirtman, or Myrtle Kirt-man Thomas, for a common-law marriage, you must find the existence of such an agreement, if you do so find from their acts and conduct after the divorce of Roy Smith and Myrtle Kirtman, or Myrtle Kirtman Thomas”

—the case was submitted to a jury on special issues, in answer to which the jury answered to questions pertinent to the issue presented on appeal, as follows:

First, that no common-law marriage existed between Myrtle Kirtman and deceased, Oliver Thomas, after Myrtle was divorced from her husband, Roy Smith; second, that a failure of the insurance company to make a lump-sum settlement with Saul Thomas of compensation due him, if any, on account of the death of Oliver Thomas, would work manifest hardship and injustice to Saul Thomas; third, that Saul Thomas was lawfully married to Georgiana Matthews and he is. the father of Oliver Thomas, deceased; and, fourth, that the average weekly wage of Oliver Thomas was $24.

At the request of defendant Myrtle. Kirt-man, the court submitted the following special issues:

“Did or did not tlie deceased and Myrtle Kirtman, after the divorce of Boy Smith and Myrtle Kirtman, during the month of October, 1928, enter into an agreement to take each other for husband and wife?” To which inquiry the jury answered, “No.”
“What year was Saul Thomas and Georgi-ana Mathews married?” To which the jury answered, “1901.”
“What year was Oliver Thomas born?” To which the jury answered, “1908.”

Upon the answers of the jury to the questions submitted and upon the evidence, the court rendered judgment in favor of Saul Thomas against the American Mutual Liability Insurance Company for the sum of $5,-184, with interest thereon from the date of judgment at the rate of 5 per cent, per annum, decreeing, however, that one-third of such recovery should be paid to plaintiff’s attorneys, Charles E. Fernandez, Henry O’Dell, and George P. Prendergast, jointly. It was further adjudged that Myrtle Kirtman and her attorneys, Howell & Howell, and the insurance company take nothing by reason of their cross-action against the plaintiff, Saul Thomas; that defendant Myrtle Kirtman and Howell & Howell take nothing by reason of their cross-action against the insurance company.

From the judgment so rendered the defendants, insurance company and Myrtle Kirtman have appealed.

As appellee Saul Thomas and appellant Myrtle Kirtman are each claiming the compensation which may be due by the insurance company by reason of the death of Oliver Thomas, it is advisable and necessary that we first dispose of the issues between those parties presented by this appeal before discussing and disposing of the contentions presented by appellant insurance company. So concluding, we shall first take up and dispose of the complaints of appellant Myrtle Kirt-man.

The undisputed evidence shows that Oliver Thomas, deceased, was the only child of Saul Thomas by his first wife, Georgiana, who died before the death of Oliv.er.

It is apparent from the entire record that the ultimate and controlling issue between ap-pellee Saul Thomas and appellant Myrtle Kirtman is: Was Myrtle Kirtman the common-law wife of Oliver Thomas at the time of his death? A finding by the jury that she was not, under a proper submission of that issue, would end the controversy between her and all other parties to the suit.

As already stated, the jury found upon sufficient evidence that Myrtle Kirtman was not the common-law wife of Oliver Thomas at the time of his death, in answer to both the inquiries made in the main charge and the special charge, of the same import as that in the main charge, requested by her; thus leaving the only inquiry, as far as Myrtle Kirtman is concerned, as to whether the court erred in submitting the question of such common-law marriage to the jury; in other words, did the court by his charge commit an error calculated to prejudice the rights of appellant Myrtle Kirtman of which she could complain?

Appellant Myrtle Kirtman complains of the definition - of “common-law marriage” given to the jury by the charge, which we have hereinbefore set out. The complaint made of such definition is: First, that it furnishes no guide to the jury upon which to base a verdict; second, that it fails to define what is meant by “implied agreement”; and, third, that the definition of “expressed agreement” was incorrect.

We are not prepared to hold that the definition complained of is incorrect, but if it was appellant Myrtle Kirtman is in no position to complain of it, as she submitted to the court, and requested that it be given to the jury, a definition of a “common-law marriage” shown on page 52 of the transcript, which is word for word.the same as the definition complained of. If, therefore, there was error in the definition given by the court, it was one in which appellant Myrtle Kirtman participated. One requesting a special instruction to be submitted cannot thereafter complain on the ground that it was erroneously given. “It is a general rule, well established by the decisions of our appellate courts, that when counsel for a party to the suit has requested the court to charge a given proposition of law, and it is given, if the charge requested and given is erroneous such error cannot be' taken advantage of by the party whose counsel made the request. This is true even where the requested charge is refused, if the same proposition is embodied in the charge given by the court, because it will be presumed that the charge given by the court was so given in compliance with the request made.” I. & G. N. Ry. Co. v. Sein, 89 Tex. 67, 33 S. W. 215, 216, 558; Wichita Cotton Oil Co. v. Hanna, 107 Tex. 30, 173 S. W. 644; Twichell v. Klinke et al. (Tex. Civ. App.) 272 S. W. 283; Poindexter v. Receivers of Kirby Lumber Co., 101 Tex. 322, 107 S. W. 42; Pyron v. Brownfield (Tex. Civ. App.) 269 S. W. 202.

Myrtle Kirtman also complains of that portion of the court’s instruction which followed the definition of common-law marriage given by the'court which reads as follows:

“Keeping the above definition and explanation in mind, you will answer whether or not a common law marriage existed betwe.en defendant, Myrtle Kirtman or Myrtle Kirtman Thomas, and the deceased, Oliver Thomas, after the dáte of the divorce between the said defendant, Myrtle Kirtman, or Myrtle Kirt-man Thomas, and Roy Smith.”

Appellant complains of the giving of such instruction, insisting that it is a charge upon the weight of the evidence and furnishes no guide to the jury, as it was a mixed question of law and facts and allowed the jury to speculate and draw their conclusions as to what would constitute a common-law marriage of Myrtle and Oliver Thomas.

There was no error in giving the instruction complained of in the manner given. It followed and referred to the definition given of what constituted a common-law marriage, just preceding it. Therefore it did not leave the jury to speculate and draw their conclusion as to what constituted a common-law marriage, as they had just been instructed in the preceding clause of the instruction how a common-law marriage could be consummated.

Appellant argues that the court erred to her prejudice in confining the inquiry as to whether or not a common-law marriage had been consummated between her and Oliver Thomas, to their acts, conduct, and intentions after she was divorced from Roy Smith in October, 1928, a little more than two months prior to the death of Oliver Thomas.

We think this contention should be answered adversely to appellant for two reasons: The evidence shows that Oliver Thomas was born in 1903, and the jury so found. Myrtle Kirtman testified that in 1918 she and Oliver began to live together under an agreement to be man and wife, and that they so held themselves out as husband and wife to the public. It is shown by the evidence stated that at the time Myrtle Kirtman says her relations began with Oliver Thomas, he was not exceeding 15 years of age, and that at the time she married Roy Smith Oliver was only about 18 years of age. Myrtle’s testimony that she and Oliver, a mere child, consummated a common-law marriage in the manner mentioned by her has, we think, no probative force. However, if we be mistaken in our conclusion just stated, the giving of the charge complained of would not, in óur opinion, constitute reversible error, if error at all, in that counsel for appellant requested the court to submit substantially an issue confining the inquiry of the acts, declarations, etc., of Myrtle and Oliver to those after she was divorced from Smith, which occurred, as we have said, only about two months prior to the death of Oliver.

Myrtle’s requested issue No. 1, which was given by the court to the jury, was as follows:

“Did, or did not, the deceased and Myrtle Kirtman, after the divorce of Roy Smith and Myrtle Kirtman 5 during the month of October, 1928, enter into an agreement to take each -other for husband and wife?”

Appellant requested no other submission with reference to the time of the cohabitation between her and Oliver Thomas disclosed by the record. If there was error in the giving of the instruction complained of, appellant participated in the same by the submission of her special requested issue No. 1, and therefore she is in no position to complain of the court’s charge. I. & G. N. Ry. Co. v. Seln, 89 Tex. 66, 33 S. W. 215, 558; Wichita Cotton Oil Co. v. Hanna, 107 Tex. 30, 173 S. W. 044; Twichell v. Klinke (Tex. Civ. App.) 272 S. W. 283; Pyron v. Brownfield (Tex. Civ. App.) 269 S. W. 202; Poindexter v. Receivers of Kirby Lumber Co., 101 Tex. 322, 107 S. W. 42.

While we have disposed' of what we consider practically the only pertinent complaints made by appellant Myrtle Kirtman, there is left a complaint by her of the refusal of the court to sustain her special exception to that part of the plaintiff’s petition which alleges, as an excuse why he did not file his claim sooner than he did, that after the death of his son, Myrtle Kirtman falsely and fraudulently represented to him that she was the wife of his son; that to bolster up such false and fraudulent representation she procured and caused to be delivered to plaintiff what purported to be a marriage certificate issued by the county clerk of Galveston county on August 14,1920, to Oliver Thomas and Myrtle Kirtman, which on its face showed that a marriage had been performed uniting said parties in marriage; that in truth and in fact such certificate had been issued to Roy Smith and Myrtle Kirtman, but the same had been altered by erasing the name of Roy Smith and inserting in lieu thereof the name of Oliver Thomas, in that such allegation was immaterial to any issue in the case and was prejudicial to the rights of her.

We think the court properly refused to sustain appellant’s exception. By section 4a of article 8307, it is provided that notice of the injury complained of shall be given to the association (insurance company) or the subscriber within 30 days after the happening of such injury, but it also provides that in ease of death of the injured party, in meritorious cases, strict compliance with the notices required and the filing of claim may be waived by the board for good caiise shown.

Under the statute the plaintiff had the right to set up his reasons for not sooner personally giving notice of the death of his son and for his failure to sooner file his claim with the board.

Having disposed of the complaints of Myrtle Kirtman adversely to her, we shall now consider the contentions made by the insurance company for a reversal of the judgment, or for a reformation of the same.

■It is advisable at the outset to note that nowhere in its brief does appellant insurance company attack the judgment for want of jurisdiction of the court to hear and dispose of the cause for want of proper notice of the injury or failure to file claim with the Accident Board.

In view of the fact that Myrtle KirtmaD was never the wife of Oliver Thomas, she is not concerned as to whether notice of the injury was given as required by section 4a of article 8307. It was agreed by the parties, as shown by the statement of facts, that notice of the fatal injury to Oliver Thomas was given by Myrtle Kirtman to the subscribers and to the insurance company within 30 days from the date of such injury. All the statutes require is that such notice shall be given as a prerequisite to a proceeding for compensation. There is no provision that such notice ■shall be given by the proper claimant. It was also agreed that Myrtle Kirtman filed a claim for compensation to the Accident Board within six months after the date of the death of Oliver Thomas, and it is shown by the undisputed evidence that the plaintiff, Saul Thomas, filed his claim for compensation with the board, contesting the claim of Myrtle Kirt-man, within six months after the date of the injury. Such being, the state of the record, and in view of the fact that the' insurance company is not making any attack on the jurisdiction of the trial court, nor the sufficiency of the notice mentioned, nor the time of filing of appellee’s claim with the board, we will not further notice the attacks made by Myrtle Kirtman upon the sufficiency of such notice and filing, as failure, if any, to give the notice or file the claim mentioned could in no way affect her rights.

Appellant insurance company first insists that the court erred in rendering judgment for the plaintiff for a sum in excess of that prayed for by him, in that appellee alleged that the weekly wage of his deceased son was $23.08 and that he was entitled under the law to 60 per cent, of said weekly wage per week for 360 weeks. He prayed for judgment for such sums, but the court rendered judgment for $14.40 per week for 360 weeks.

Appellant correctly insists that the judgment rendered is based upon the finding of the jury that the average weekly wage of deceased was $24 and that such judgment is not supported by the pleadings, nor in answer to the prayer of the plaintiff.

According to the table in use by the Accident Board of Texas, the present value of $1 paid over a period of 360 weeks is $296.-0756. The judgment rendered by the court in this case gave appellee a recovery of $5,184. The sum prayed for by appellee is $4,986, which was all the court could have properly awarded upon appellee’s allegations and prayer. Since the court awarded to appellee the sum of $5,184 to be paid in a lump sum without allowing a reduction of 6 per cent, as agreed upon by the parties in ease of an award of a lump-sum settlement, and since the award should have been for $4,986 only, which in case of a lump-sum settlement should have been discounted at the rate of 0 per cent., reducing the sum which should have been awarded to $4,101.55, and since the difference between such sum and the $5,184 awarded is $1,083.45, such difference in the two sums should have been deducted from the $5,184 awarded by the judgment, which would leave a balance of $4,101.55 for which only the judgment should have been rendered.

Appellee filed in the trial court a remit-titur, asking the court to remit 6 per cent, from the sum of $5,184 awarded by the court, which remittitur the court approved and allowed. Appellee, however, in his brief filed in this court, says that it was his intention to file the proper remittitur, which is now shown to be $1,083.45, thus leaving $4,101.55, which sum ought to have been awarded to him by the judgment, and that he now in this court files his remittitur in the sum of $1,-083.45, and asks that in case the judgment can be affirmed upon the filing of such re-mittitur that it be so reformed by deducting the same sum of $1,083.45 from the sum of $5,184 awarded to him by the judgment, leaving a judgment in his favor for $4,101.55 and, as reformed, affirmed.

We have reached the conclusion that unless the judgment should be reversed upon some other complaint of appellant insurance company, the same should be reformed and affirmed as requested by appellee.

By its second proposition the insurance company insists that the court erred in rendering judgment for a lump-sum settlement, in that there was no pleading that this was a case in which manifest hardship and injustice would result if such settlement was not made, and in that no facts were pleaded from which such manifest injustice or hardship could be inferred, and in that there was no prayer for a lump-sum settlement.

We overrule appellant’s contention. In plaintiff’s supplemental petition it is alleged as follows:

“That the deceased, Oliver Thomas, from time to time, has contributed certain sums of money to plaintiff, and without which plaintiff would barely have existed, on account of his being unable to properly purchase the necessities of life, the only receipts received by plaintiff being from a small truck farm owned by his second wife; that on many occasions, while deceased was not employed, the deceased helped plaintiff in the working of the small farm owned by his second wife, and that the plaintiff’s physical condition is such that he has been incapacitated from doing any hard, heavy, or laborious manual labor, for more than twenty years.”

He made substantially the same allegations in his original petition.

Plaintiff testified tliat Ms health was such that he could not do any hard work; that he had been suffering from inflammatory rheumatism for twenty years.

Daniel Thomas'testified that Saul Thomas was suffering from rheumatism and had been so suffering for some time and was unable to perform manual labor; that witness.had assisted in maintaining Saul Thomas by giving him groceries and other necessaries of life; that Saul Thomas cannot earn enough to maintain himself and his wife.

Henry Matthews testified that Saul Thomas is a cripple and cannot do hard work.

Sidney Martin testified that Saul Thomas is a cripple.

Gilbert Sutton testified that he had known Saul Thomas for twelve -or thirteen years; that Saul is a cripple.

It has been held by the Commission of Appeals and several of our Courts of Civil Appeals that in cases where a lump sum is awarded and the proper discount allowed, and only the present value is to be paid, no hardship is worked on the insurance company by such award. That the only just contention that could be made would be that a proper discount had not been allowed. Consolidated Underwriters v. Saxon, 265 S. W. 143,146, by the Commission of Appeals; New Amsterdam Casualty Co. v. Parham (Tex. Civ. App.) 2 S. W.(2d) 866; Texas Insurance Association v. Wright (Tex. Civ. App.) 297 S. W. 764, 766; Travelers’ Insurance Co. v. Smith (Tex. Civ. App.) 266 S. W. 574, 576; Georgia Casualty Co. v. Little (Tex. Civ. App.) 281 S. W. 1092.

We quote from the cases cited, as follows:

Texas Employers’ Insurance Association v. Wright, supra:

“The defendant did not plead the necessity for such lump sum settlement, neither did he ask for it in his motion for judgment. Such issue was not submitted to the jury for their determination. * * • The trial court, independent of the jury, found the necessity for a lump sum award because the failure to make such award would inflict manifest injury upon the defendant. Our courts have uniformly held that the awarding of such lump sum judgments was discretionary with the trial court, and unless this discretion is abused such finding and conclusion cannot be disturbed on appeal. It is true, ordinarily, that, in the absence of pleading authorizing a recovery, the judgment will not stand, but as our courts have also held that the compensating company has suffered no injury, where a proper discount has been made on the weekly payments, such assigned error does not call for a reversal of the case.”

In the case of Consolidated Underwriters v. Saxon, 'supra, the Commission of Appeals, speaking by Judge Hamilton, says:

“At any rate, the lump sum is discounted and only its present value is paid when a lump sum is allowed. Hence no hardship is worked .on the insurance company or association by such a settlement. Its only contention justly to be made would be that a proper discount had not been made.”

- Travelers’ Insurance Co. v. Smith, supra:

In any event, where a proper discount reducing future payments to a present value is made by the trial court, the insurance company is not injured, and should only be heard to complain that proper discount has not been made.

In view of the holdings in the cases cited, we overrule the contention of appellant last mentioned.

Special issue No. 2 submitted to the jury was as follows:

“Would a failure of the defendant American Mutual Liability Insurance Company to make a lump sum settlement with plaintiff, Saul Thomas, of the compensation due him, if any, on account of the death of Oliver Thomas, deceased, work manifest hardship and injustice to the plaintiff, Saul Thomas? Answer Yes or No.”

By special issue No. 3 the jury was asked whether or not Saul Thomas was lawfully married to Georgiana Matthews, and special issue No. 4 was as follows:

“If you have found from a preponderance of the evidence, and have answered the foregoing interrogatory in the affirmative, then you will answer the following issue: Is, or is not, plaintiff, Saul Thomas, the father of Oliver Thomas, deceased? Answer ‘He is’ or ‘He is not.’ ”

By its third and fourth propositions, appellant insurance company urges that the court erred in failing and refusing to charge upon the burden of proof in connection with special issues 2 and 4. The objection made to the two charges in the trial court, with reference to burden of proof, is that they do not inform the jury upon whom the burden of proof of the issues rests.

While it is a rule of law that the burden is upon the party asserting the affirmative of an issue, it is often not necessary to give it in a charge to the jury. In many cases, as in this case, the evidence on the issues in question is practically undisputed, and in such circumstances it is unnecessary to give instructions upon the burden of proof. The-charges are insufficient if they submit the questions of fact to be found. Blum v. Strong, 71 Tex., 321, 6 S. W. 167; Davis v. Hill (Tex. Civ. App.) 291 S. W. 681; Plains Drilling Co. v. Christy (Tex. Civ. App.) 25 S.W.(2d) 276; Eord v. Couch (Tex. Civ. App.) 16 S.W.(2d) 869, 870; Moore v. Orgain (Tex. Civ. App.) 291 S. W. 583 ; Stooksbury v. Swan, 85 Tex 566, 22 S. W. 963.

In Ford y. Couch, supra, it is said:

“It is ordinarily not proper for the court to charge the jury that the burden of proof upon an issue is upon the plaintiff, or upon the defendant, in cases submitted upon special issues, for the reason that the jury are not to he informed an answer to a special issue is favorable to plaintiff or defendant.”

The rule so announced is also announced in the other cases cited.

We have hereinbefore quoted the evidence of several witnesses which shows that the plaintiff was a cripple and had been such for a long time, and that he was unable to do hard work, and was unable to make a living. Hence it was not necessary to tell the jury that the burden was upon plaintiff to prove that a failure to get his compensation in a lump sum would work a hardship upon him.

The question as to whether the plaintiff was lawfully married to Georgiana Matthews and that he was the father of Oliver Thomas, deceased, is not controverted by any witness, or even by a remote circumstance. It was not necessary under the evidence to submit the inquiry as to the marriage of Saul Thomas to' Georgiana Matthews, or as to whether or not Oliver was the son of Saul Thomas.

We overrule the contentions made by appellant’s propositions Nos. 3 and 4.

In answer to special issue No. 5, the jury found that the average weekly wage of Oliver Thomas, deceased, was $24. Appellant attacks such finding as being contrary to the great and overwhelming weight of the evidence and as contrary to the only evidence introduced on the issue by appellee, by which he is bound. .

Such attack is untenable. It was agreed by counsel for all parties that the witness William McKinley testified that from his knowledge he knew that a man, engaged in the same or similar work to that in which Oliver Thomas was engáged, made 40 cents an hour for regular time, and 60 cents an hour for overtime; and that during the two years that Oliver worked for Suderman & Young prior to his death he was a good steady worker and that he worked the year round; that he was in the employ of Suder-man & Young the entire year prior to his death; that he worked steadily, and sometimes he made 50 cents an hour overtime.

Myrtle Kirtman testified that she sometimes got Oliver’s weekly pay envelope and it contained some weeks $25 and sometimes $30; that sometimes he made $20 per week, sometimes $25, and sometimes $30.

Appellant complains of the submission of special issue No. 5, insisting that the court erred in submitting such issue without defining the term average weekly wage. We overrule such contention. In special issue No. 6, which went to the jury, the court asked the jury the following question;

“What amount do you find, from a preponderance of the evidence, was the weekly wage of Oliver Thomas, for the year immediately preceding his death on January 1, 1929?”

While the jury were told that they were to answer such question only in the event they had, in answer to issue No. 1, found that Myrtle Kirtman was the common-law wife of Oliver Thomas, such inquiry was followed by the following definition of “average weekly wage”:

“In this connection, you are instructed by the term ‘average weekly wage is meant ⅛2nd of his average annual wage, and by the term ‘average annual wage’ is meant 300 times his average daily wage.”

While the jury were not required to make answer to issue No. 6, as they answered issue No. 1 that Myrtle Kirtman was not the common-law wife of Oliver Thomas, they must have read the definition of “average weekly wage” given by the court. However, the writer is of the opinion that without such definition any jury of ordinary intelligence, knowing that there are 52 weeks in a year, would know that ⅜2 part of an annual wage would be a weekly wage. The objection made to issue No. 5 is too technical to cause a reversal of the judgment.

If, however, we are in error in the holdings next above stated, appellant’s complaint should be overruled, because the court gave to the jury special issue No. 6, requested by appellant Myrtle Kirtman, defining “average weekly wage” as follows:

“What amount do you find, from a preponderance of the evidence, was the average weekly wage of Oliver Thomas for the year immediately preceding his death on January 1, 1929?
“In this connection you are instructed, by the term ‘average weekly wage’ is meant one-fifty-seoond of his average annual wage, and by the term ‘average annual wage’ is meant 300 times his average daily wage.”

Hence, it is apparent that the instructions which appellant says should have been given were in fact given to the jury.

We have already, under the disposition of appellant’s contentions under its propositions 1 and 2, disposed of the contentions made by its propositions 7 and 8, and therefore we shall not discuss the contentions made by such propositions.

For the reasons above stated, the judgment is reformed by deducting from the sum of $5,184 awarded to appellee, Saul Thomas, by. such judgment, the sum of $1,083.45, remitted by appellee in this court, leaving a bal-anee of $4,101.55, for which sum judgment is here rendered for appellee, Saul Thomas, against American Mutual Liability Insurance Company; such judgment is further reformed so as to award to Charles E. Fernandez, Henry O’Dell, and George P. Prender-gast, attorneys of Saul Thomas, jointly one-third of the sum here adjudged to Saul Thomas, which is $1,367.15 instead of $1,728.00 awarded to them by the judgment of the trial court, which sum awarded to said attorneys is to be paid by the American Mutual Liability Insurance Company out of the sum here adjudged to appellee, Saul Thomas. The judgment as thus reformed is affirmed.

Reformed and affirmed.

On Motion for Rehearing.

Appellant Myrtle Kirtroan Thomas has filed her motion for rehearing, and in such motion it is said that this court held that appellant’s objection to special issue No. 1 given by the court was well taken, but that as appellant had requested a similar issue to the one given by the court, the error of the court in submitting special issue No. 1 became harmless and could not be complained of by appellant.

Appellant in her motion correctly states that the requested issue referred to was not requested by her, but that it was given at the request of Saul Thomas, but she is in error in stating that this court held that appellant’s objection to special issue No. 1 given by the trial judge was well taken and that the court erred in submitting it to the jury over appellant’s objection.

We did not hold, as stated by appellant, that the submission of special issue No. 1 was error, nor do we now so hold. To the contrary, we are of opinion that the submission of such issue was not error.

With the above statement, we overrule appellant’s motion.

Overruled.


author: PLEASANTS, C. J.

text:
    SECURITY UNION INS. CO. v. McCLURKIN.
    No. 9490.
    Court of Civil Appeals of Texas. Galveston.
    Dec. 26, 1930.
    Rehearing Denied Jan. 29, 1931.

      King, Battaile & Dutton and John F. BtEt-taile, all of Houston, for plaintiff in error.
    Ralph W. Barry and J. B. Leigh, both of Navasota, for defendant in error.
   PLEASANTS, C. J.

For brevity, the parties will be hereinafter designated appellant and appellee.

The following succinct and clear statement of the nature and result of this suit is copied from appellant’s brief:

“This suit was instituted by the appellee in the district court of Grimes County, Texas, appealing from an award of the Industrial Accident Board previously made and entered. The suit therefore is one brought under the statutory act known as the Workmen’s Compensation Act, and the rights and remedies of the respective parties controlled by that act. No question arises in the cause as to the jurisdiction of the trial court over the subject matter or parties — the jurisdictional prerequisites having been alleged and established.
“In his suit the appellee alleged that he was an employee of the Western Public Service Company — a subscriber under the Workmen’s Compensation Act of the State of Texas; that the Insurance Company (appellant) was the insurer of the liability imposed upon the employer under said act; that he was injured while acting in the scope of his employment and entitled therefore to compensation from the appellant by reason of such fact. His wage was sufficient to entitle him to maximum weekly compensation of $20.09 per week.
“The appellee asked judgment for medical and hospital attention and expense aggregating $440.85, for compensation in the amount of $340.00 for total disability for a period of 17 weeks, and for $6000.00 by reason of partial incapacity, same being calculated at the rate of $20.00 per week for 300 weeks. (The defendant answered by general demurrer and a number of special exceptions, the nature of which, so far as they may be relevant to the questions decided in this opinion, will be hereinafter indicated, and by a general denial.)
“The case was tried before the court with-' out a jury upon an agreed statement of facts, and judgment was rendered in favor of appel-lee and against the appellant in the aggregate amount of $2449.25.’’

Under the first proposition presented in appellant’s brief it is earnestly and forcibly urged that the injury sustained by appellee was not upon the facts of this case' one which is compensable under the provisions of the Workmen’s Compensation Act of this state.

The following is taken from the agreed facts upon which the case was tried in the court below:

“That at the time of the injury, plaintiff was Division Superintendent of the Sales Department for the Western Public Service Company for the Navasota Division, and was in such employment, located and domiciled at Navasota, Texas; that in connection with his duties he was required to travel to the different towns in the Navasota Division which comprised several counties; that his duties in the main were the general superintending of sales and supervising all services incident to such sales; that while performing his usual duties it was customary for plaintiff to be out of Navasota and his office for four or five days per week and that in getting to and from 'these respective places in his territory he used an automobile furnished him by his company; that for the purpose of the Company’s convenience, the company had installed at plaintiff’s home a telephone which was carried in the name of the plaintiff but the .bills for such telephone services were paid by plaintiff's employer ; that at the time Mr. MeClurkin was injured by running the needle into his foot he had just completed conversation from said telephone in connection with his employer’s business, as hereinafter stated.
“That on the morning of May 31st, 1928, at or about 8:30 A. M., plaintiff, L. C. MeClurkin, was aroused from his sleep at home by his wife to answer a long distance telephone call. That said telephone call was from Mr. Hereford. Superintendent of the Conroe Plant of the Western Public Service Company, situated about fifty miles from Navasota; that after completing conversation with Mr. Hereford over the telephone, plaintiff turned from the telephone and stepped on a needle which was on the floor at or near the telephone, sticking same into the ball of right foot, the eye of the needle striking one of the bones of plaintiffs foot and said needle was broken off and lodged in the flesh of plaintiff’s foot, resulting in .a painful injury. That in discharging the duties of his employment, plaintiff was detained from his home until 2:30 A. M. of the morning of May 31, 1928. As a result of the injury aforesaid, the plaintiff was confined to his bed for a period of eight days and to his home for seven days ad- ■ ditional, returning to his office on June 15th; .that from June 15th to July 11th, plaintiff worked at his office of his employer at Nava-sota, Texas, but not doing the work he was customarily engaged in; that during said period .he could only work approximately one-half a day each day; that on July 11th the injury to his foot became very painful and a serious infection having set in and upon the advice of Dr. Harris of Navasota (Insurance Company Dr. S. D. Coleman being out of town and services not available), the plaintiff went to Houston to his father-in-law’s home where Dr. Priester was awaiting him, who immediately made an examination of plaintiff’s foot and after probing and draining, he recommended an operation.”

We cannot agree with appellant in the. contention that the injury received .by appellee in the circumstances shown by the agreed facts before set out was not compensable under our statute. The rule of the English courts to the effect that the only risk against which the English Workmen’s Compensation Law affords protection, is one which is a necessary concomitant of the occupation the workman is engaged in is not the rule established by the courts of this state in the construction of our Workmen’s Compensation Act.

As we understand the decisions of our courts, an injury may originate in the work of the employee engaged in the furtherance of the business of his employer when the risk of the injury is not a necessary concomitant of the work. If the risk is incidentally attendant upon work in furtherance of the employer’s business and does not come within the exceptions contained in section 1, art. 8309, the employee is protected by our statute.

Section 1, art. 8309, of our Revised Statutes (1925), provides:

“The term ‘injury sustained in the course of employment,’ as used in this law, shall not include:
“L An injury caused by the act of God, unless the employee is at the time engaged in the performance of duties that súbjeet him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public.
“2. An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.
“3. An injury received while in a state of intoxication.
“4. An injury caused by the employee’s willful intention and attempt to injure himself, or to unlawfully injure some other person but shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

In going to the telephone, placed in his apartment by his employer for the purpose of communicating with him, to answer a call from his employer, the appellee was performing the duties of his employment and furthering the business of his employer, and the injury received by him in answering the call was one having to do with and originating in the work or business of his employer. The risk or hazard taken by appellee in answering the call was taken in order to perform the duties of his employment, and the injury caused thereby is compensable under the article above quoted. The fact that the injury occurred in appellee’s apartment, and that the needle upon which he stepped was probably dropped there by some member of his family, does not affect the question. When his employer placed the phone in appellee’s apartment and made it appellee’s duty to answer its calls at all times, appellee in the performance of the duties of his employment was required to take all reasonable risks in answering the call, and the statute intended to protect him against such risk. Pace v. Appanoose County; 1S4 Iowa, 498,168'N. W. 916, 918. In the cáse cited the Supreme Court of Iowa says: “What the law intends is to protect the employee against the risk or hazard taken in order to perform the master’s task.”

In the case of Procaccino v. Horton & Sons, 95 Conn. 408, 111 A. 594, 595, in which an employee was injured while crossing private property on the way to his place of work, which way of approach to the employer’s place of business the court found was contemplated by the employer would be used by its employees, the Supreme Court of Connecticut said: “When this employee, under the facts found, entered upon the private property lying between Main street and the defendants’ plant, he came within the zone of his employment, and all dangers and perils incident to the use of this method of approach were perils incident to and arising out of his employment.”

These extracts from the cited cases are copied and approved by our Supreme Court in the able and exhaustive opinion of Justice Greenwood in the case of Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402.

It seems to us that the case presented by this record cannot be distinguishable from a ease in which an employee is injured in the performance of the duties of his employment at or in the place of business of his employer. In neither case can the contributory negligence of the employee be considered nor is there any exception to his right to compensation other than those contained in the statute before cited. When appellee’s employer required him to answer its calls over the phone placed by it in appellee’s apartment at any time, day or night, it contemplated that in answering the calls appellee would subject himself to the risks and hazards incident thereto and would be entitled to compensation for any injury so received not excepted from compensation by the statute.

It has been uniformly held by our courts, that the statute, being remedial in its character, should be liberally construed so as to give full effect to its benign purpose and intendment. Under this rule any reasonable doubt which may arise in a particular case as to the right of the injured employee to compensation should be solved in favor of such right. The cases of Employers’ Liability Assurance Corporation v. Light (Tex. Civ. App.) 275 S. W. 685, Associated Indemnity Corporation v. Wilson (Tex. Civ. App.) 21 S.W.(2d) 314, and Federal Surety Company v. Ragle (Tex. Civ. App.) 25 S.W.(2d) 898, all tend to support our conclusion that the injuries sustained by appellee are compensable under our statute. The case of Insurance Company v. Burnett (Tex. Com. App.) 283 S. W. 7S3, 7S4, cited by appellants, is easily distinguishable from the case presented by this record. In the Burnett Case the plaintiff, who had returned from a hunting trip, was injured in removing a loaded gun from his automobile in which he was starting a trip in furtherance of the business of his employer. In removing the gun which he had left in his car on his return from his hunting trip, it was accidentally discharged and caused the injury for which he sought compensation. In deciding -the Burnett Case, the Commission of Appeals, with the approval of the Supreme Court, held: “Burnett was injured in his attempt, to remove from his automobile his gun placed there by him for the purpose of shooting doves. The purpose of having the gun in the car had to do only with his dove hunting. It had nothing to do with, and was an incident apart from, any work he was doing for his employer. The injury caused by his attempt to remove the gun did not result from a risk or hazard incident to the business of selling baking powders. This injury had nothing to do with and did not originate in his employer’s business, and hence is not such injury .as is contemplated by the statute.”

It seems to us the soundness of this holding cannot be questioned, but that it has no application to the facts of the instant case.

The appellant next assails the judgment on the ground that it awards appellee items of compensation not allowed under the statute. The first items of compensation complained of and the grounds of complaint as to each are thus stated in appellant’s brief:

“(a) $140 for 7 weeks’ total disability;
“(b) $173 for 10 weeks’ partial disability at $17.30 per week; and
“(c) $6.92 per week for a period of 200 weeks, account of 20% permanent partial incapacity ;
“Is erroneous,
“(a) Because under the law compensation for a specific injury is in lieu .of all other compensation, and the amount of $140 total disability is excluded therefore under the provision of the law;
“(b) Because the allowance by the trial court of $17.30 per week for 10 weeks is an arbitrary finding and judgment of the court, having no evidence in the record upon which such judgment could be based, and is not authorized under the Compensation Act where the specific injury clause is applicable; and
“(e) Because there is no evidence in the record warranting judgment for $6.92 per week for 200 weeks’ permanent partial incapacity, and such judgment is therefore arbitrary and not supported by any evidence and unauthorized under the law where the court allows compensation for a specific injury to the toe under section 12, article 8306, Revised Civil Statutes 1925, and said injury to the toe is not complicated by any other injury.”

The facts as to the nature and extent of appellee’s injuries are thus stated in the record:

“Plaintiff turned from the telephone and stepped on a needle which was on the floor at or near the telephone, sticking same into the bail of his right foot, the eye of the needle striking one of the bones of plaintiff’s foot and said needle was broken off and lodged in the flesh of plaintiff’s foot resulting in a painful injury. * ⅜ * Asa result of the injury aforesaid, the plaintiff was confined to his bed for a period of eight days and to his home for seven days additional, returning to his office on June 15th; that from June 15th to July 11th, plaintiff worked at the office of his employer at Navasota, Texas, but not doing the work he was customarily engaged in; that during the said period he would only work approximately one half a day each day; that on July 11th, the injury to his foot became very painful and a serious infection having set in and upon the advice of Dr., Harris of Navasota, (Insurance Company Dr. S. D. Coleman being out of town and services not available) the plaintiff went to Houston to his father-in-law’s home where Dr. Priester was awaiting him, who immediately made an examination of plaintiff’s foot and after probing and draining, he recommended an operation. Plaintiff arrived at his father-in-law’s home about 8:30 at night. Dr. Priester recommended that the plaintiff go to the Baptist Hospital the following morning for X-ray examination of the foot, which plaintiff did; that said X-ray examination was made at Baptist Hospital and following said examination Dr. Priester recommended immediate operation on said foot for the purpose of scraping the bone and removing from it decayed bone and sloughed off tissues; that the plaintiff thereupon took a room in the Baptist Hospitál on the morning of July 12th and the operation was,performed. * * *
“At the time of the injury above named, plaintiff was Division Superintendent of the Sales Department for the Western Public Service Company for the Navasota Division, and was in such employment, located and •domiciled at Navasota, Texas; that in connection with his duties he was required to travel to the different towns in the Navasota Division which comprised several counties; that his duties in the main were the general superintending of sales and supervising all services incident to such sales; that while performing his usual duties it was customary for defendant to be out of Navasota and his office for four or five days per week, and that in getting to and from these respective places in his territory he used an automobile furnished him by his company.”

Further quoting from agreed statement of facts: “That as the result of said injury plaintiff has an ankylosis in a favorable position of the great toe of the right foot, this resulting in a disability of 30--35 percent as applied to the great toe which will be permanent ; that at the present time when plaintiff has occasion to drive his ear for as much as one-half day, at times the scar on his foot becomes, tender and he has to relieve pressure on the foot which was injured.” It will be noted that the injury was received on May 81, 1928, and that the agreed statement of facts is dated the 10th day of July, 1929, practically fourteen months after the injury, and that at said time plaintiff still suffered pain from the scar on his injured foot.

We cannot agree with appellant’s contention that, because appellee claimed and was allowed compensation for permanent partial injury to his toe, he was not entitled to recover any additional compensation under the provision of section 12, ¿rt. 8306, of the statute, which declares that the compensation therein allowed for the loss of specific members of the body shall be in lieu of all other compensation. It has been expressly held that this provision does not apply to partial injuries to different members of the body, but that the following provision in the same section of article 8306 of the statute is applicable in such case: “Where the employee sustains concurrent injuries resulting in concurrent incapacities, he shall receive compensation only for the injury which produces'the longest period of incapacity; but this section shall not affect liability for the concurrent loss or the loss of the use thereof of more than one member, for which, member compensation is provided in this schedule, compensation for specific injuries under this law shall be cumulative as to time and not concurrent.” Texas Employers’ Ins. Association v. Morena (Tex. Com. App.) 277 S. W. 84.

The facts disclosed by the record bring the case clearly within the rule laid down in the Morena Case. Appellee pleaded, and the agreed statement of facts upon which the case was tiled shows, that the needle which caused his injury was stuck in the ball of his foot, and the injury to his foot was his primary injury; the injury to his toe having been thereafter caused by the infection in his foot.

It is, we think, clear upon this state, of facts that appellee is entitled to recover for both the injury to his foot and the subsequent and resulting permanent partial injury to his toe. Wre think the facts are sufficient to sustain the finding of the court that, as a result of his injury, appellee suffered a total disability for a period of seven weeks. The first period of such disability did not last for seven weeks, but, after his foot became infected and he was forced to go to a hospital for its treatment, the period of such disability was extended to seven weeks or more.

We also think the agreed facts sustain the judgment awarding appellee $173 for ten weeks’ partial disability. That appellee was partially incapacitated from performing his work during the ten weeks immediately succeeding the period of his total disability is shown by the agreed ^aets, and this diminution in his capacity to perform his work was 20 per cent., as shown by the record. The allowance of $17.50 per week for this incapacity is not in excess of 20 per cent, of his average weekly wages as shown by the record.

We are not prepared to hold that the facts are insufficient to sustain the court’s finding that appellee was entitled to recover the item of $6.92 for 200 weeks for partial disability. The injury to his foot and the operation performed thereon were of such serious nature that it had not ceased to give him pain and partially incapacitated him for his work up to the time of the trial, which was more than a year after his injury, and we cannot say, in the absence of any conflicting facts, that the court was not authorized to find that the injury was permanent.

With the exception hereinafter shown, we think appellant’s objection to the several jtems of damages awarded the appellee by the judgment are based upon an erroneous conception of the case made by the pleadings and the agreed facts. Appellee’s claim for compensation is not based solely upon the permanent injury to his toe, but upon the injury to his foot and the resultant permanent partial injury to his toe. In a case of this kind we think the court in fixing the amount of recovery properly followed the statute in regard to concurrent injuries, to different members of the body, and all of the allowances made by the court should be sustained except the allowance of $440.85 for medical services and hospital fees incurred by appellee when his foot became infected after he had returned to work. Under section 7, art. 8306, appellant could not be held liable for these, fees which the record fails to show were incurred with the consent or knowledge of appellant.

The judgment will be reformed by striking this item therefrom, and, as so reformed, will be affirmed.


author: HICKMAN, O. J.

text:
    SELF v. THOMPSON et al.
    No. 787.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 30, 1931.
    T. R. Odell, of Throckmorton, and Dickson & Dickson, of Seymour, for appellant.
    B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellees.
   HICKMAN, O. J.

The court below dismissed appellant’s suit for want of jurisdiction and the appeal is from the judgment of dismissal. Appellant declared upon a promissory note in which Thompson Bros., B. D. Thompson, and D. D. Phillips were the makers, and Texhoma Oil & Refining Company was the payee. The note was dated January 28,1925, for the principal sum of $729.80, payable in three equal installments of $243.27 on or before the 28th day of ■ February, March, and April, 1925, respectively. The petition set out the note in full and alleged that said nóte bears the following indorsements:

“2/25/25 D. D. Phillips 243.27
“3/25/25 D. D. Phillips 243.27
“5/25/25 Cash 39.92 Or. 10.08 50.00
“6/16/25 Ck. 50.00
“7/21/25 Cash 9.18
“8/10/25 J. Lewis Jackson 11.09
“9/3/25 C’s check 29.73”
“Pay to the order of D. D. Phillips without recourse on Texhoma Oil & Refining Company, Texhoma Oil & Refining Co., E. H. Bfldleman. By Vice President.”
■ “This note was signed by D. D. Phillips as a surety only and the sum of $579.80 was paid by Phillips together with interest, which amount was transferred to D. D. Phillips by Texhoma Oil & Refining Company, and I, D. D. Phillips, hereby transfer the above amount to J. W. Cope and J. B. Self without recourse on me. D. D. Phillips.”

It then alleged:

“That the payee of the note sued on herein Texhoma Oil & Refining Company, indorsed said note to D. D. Phillips on the 9th day of October, 1925, without recourse, and that D. D. Phillips indorsed said note to this plaintiff and J. W. Cope; that J. W. Cope is now deceased and that this plaintiff is the sole owner of all the assets of the former partnership of J. W. Cope and J. B. Self, and is therefore the present owner and holder of the said note.”

The further allegation is made, “that said note is now past due and unpaid.” A plea to the jurisdiction pointed out that the petition declared upon a note upon which there was due, by the allegations of the petition, an amount less than $500. The plea was sustained and the cause dismissed.

In our original opinion we affirmed the judgment of the trial court. It was our view of the law as it then existed that when a surety pays the note of his principal, as distinguished from cases where he purchases same from the payee, he cannot thereafter maintain an action on the note, as such, but must maintain a suit for reimbursement upon the implied promise of the principal to repay. The petition having shown that the surety had made payments on the note long prior to the time same was assigned to him, it was our conclusion that the assignment transferred to him only the balance due at the date thereof, •which reduced the amount in controversy below the jurisdictional amount of the district court. Since our original opinion was handed down, our Supreme Court has released an opinion in the cause of Ben J. Fox, Independent Executor, v. J. H. Kroeger, 35 S.W.(2d) 679, in which the rule governing the right of a surety to maintain a suit against his principal is announced in the following language:

“From what we have said it follows that we now announce the rule in Texas to be that, where the surety pays the debt of the principal, he has his election to either pursue his legal remedies and bring an action on an as-sumpsit, or the obligation implied by law in his favor for reimbursement by the principal; or he can prosecute an action on the very debt itself, and in either event he stands in the shoes of the original creditor as to any securities and rights of priority. What we have already said applies with equal force to ail debts whether represented by a negotiable instrument or not.”

Applying that rule to the instant case, it is manifest that appellant’s petition stated a cause of action of which the district court had jurisdiction. Granting that Phillips, the surety, actually paid the amounts credited on the note to him as payments, this fact would not prevent his maintaining a suit on the note itself. By the allegations of the petition the amount paid by Phillips was $579.80, besides interest. Such payment by him gave him a cause of action on the note for that amount, with interest and attorney’s fees, and appellant has acquired, by the allegations of the petition, the same right to maintain suit on the note as that possessed by Phillips.

It is therefore our conclusion that, in the light of the recent opinion of the Supreme Court above mentioned, the judgment of the trial court dismissing the petition was erroneous. It will, of course, be understood by the parties that we are passing only on the question of jurisdiction, and nothing herein stated will be construed as an expression or holding by this court on the facts as they may be developed upon the trial of the cause.

For the reason indicated, our original opinion is withdrawn and- this opinion substituted therefor; the order of this court heretofore entered affirming the judgment, of the trial court is set aside, and, on rehearing, it is ordered that the judgment of the trial court be reversed, and the cause remanded.


author: WALTHALL, J.

text:
    PETROLEUM CASUALTY CO. v. BRISTOW.
    No. 2499.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 26, 1931.
    Rehearing Denied March 19, 1931.

      Knox W. Gilmore, of Houston, and R. D. Blaydes, of Fort Stoclston (R. E. Seagler, of Houston, of counsel), for appellant.
    White & Yarborough, of Dallas, and Hart Johnson, of Fort Stockton, for appellee.
   WALTHALL, J.

This is a second appeal of this case. A full statement of the case on the first appeal is found in 21 S.W.(2d) 9, to which we refer, and need not be repeated here.. This trial was had with the same issues as'in the first trial, and submitted to a jury on special issues, with the result that appellee was awarded judgment for compensation for total permanent incapacity, and in a lump sum, with interest from date of judgment.

The jury found:

1. That Bristow on July 14,1928, sustained a personal injury in the course of his employment with the Humble Pipe Line Company.

. 2. That Bristow, as a result of his injury, sustained a total disability.

3: That the total disability to Bristow by said injury is permanent.

Questions 4, 5, 6, 7, and 8, referring to partial disability, were not answered.

9. A manifest hardship and injustice will result to Bristow in the event compensation due him is not paid in a lump sum.

10. The rate of discount that the Petroleum •Casualty Company is entitled to receive on future payments of compensation, if paid in a lump sum now, is 6 per cent.

11. “What per cent, of disability, if any you have found, do you find was caused to J. T. Bristow, if any, by the accident and injury which he received on the 29th day of September, 15Í09, when falling from a locomotive tender in New Mexico? Answer with the per cent., if any. Answer, ‘None.’ ”

12. The average wages- earned by Bristow per day during the days when so employed during the year immediately preceding his injuries on July 14, 1928, was $6.50.

Issúes requested by appellant and submitted:

“1. What per cent, of disability, if any, suffered by J. T. Bristow, do you find from a preponderance of the evidence would have resulted from the injury of July 14, 1928, had there been no prior injury of September 29th, 1909? Answer by giving the per cent. Answer: 100%.”

2. The disability suffered by Bristow was not the result of pyorrhea or toxic poison.

3. (Conditional and not answered.)

4. No portion of the disability suffered by Bristow is due to arthritis.

5. (Conditional and not answered.)

6. The disability or incapacity sustained by-Bristow is not due to lumbago.

The trial court 'made the calculations necessary to be made -on the findings of the jury and so entered judgment for appellee and ap-pellee’s attorneys in the proportions they were to receive same.

This appeal is duly prosecuted from the judgment rendered.

Opinion.

Appellant’s first four propositions are based upon assigned error in sending the jury back to their jury room for further deliberation after the jury had answered the special issues. We cox>y appellant’s bill of exceptions as to what occurred in sending the jury back, arid the court’s qualification to the bill. Omitting the formal parts, it reads:

“After the argument had closed and the jury had retired to consider their verdict with the Court’s main charge and main issues, together with the special issues requested by cross-defendant and after the jury had been out for approximately two hours or more; they returned into open court and reported that they had arrived at a verdict and presented the Court with the charge and special issues together with their answers signed by the Foreman, and Special Issue No. 6 requested by cross-defendant, which special requested issue and the answer of the jury thereto as well as Special Issue No. 7, requested by cross-de-defendant, was as follows, to-wit:
“ ‘Special Issue No. 6 requested by cross-defendant:
“ ‘Do you find from a preponderance of the evidence that the disability or incapacity sustained by J. T. Bristow, if any, is due to lumbago? Answer “Tes” or “Nq.”
“ ‘Answer: “Yes.”
“ ‘Special Issue No. 7, requested by cross-defendant was as follows:
“ ‘If you have answered Special Issue No. 6, requested by cross defendant “Yes,” then answer the following:
“ ‘But if you answer it “No” you need not answer the following: What percent of disability, if any, suffered by J. T. Bristow is due to lumbago? Answer by giving the percent.
“ ‘Answer: -.’
“And after the jury had presented the Court with the special issues, including cross-defendant’s requested issues and their answers thereto the Court proceeded in the presence of the jury to read the special issues together with the answer to each special- issue and proceeded in numerical order until the answer to the cross-defendant’s requested Special Issue No. 6 was read aloud in the presence of the jury and the attorneys -and when the court had finished reading cross-defendant’s requested Special Issue No. 6, and the answer thereto, he then stated that no answer was made to Special Issue No. 7, requested by cross-defendant and hesitated, and then in an undertone stated to Mr. H. J. Yarborough, one of the attorneys for cross-plaintiff, substantially as follows:
“ ‘Yarborough, I am afraid that this answer will not support a judgment.’
“Whereupon Mr. Yarborough stated that in his opinion it would as the jury had answered ■the main issues in his favor, and K. W. Gil-, more, one of the attorneys for cross-defendant, asked Mr. Yarborough not to talk so loud in the presence of the jury, whereupon the Court in an undertone, again stated that he was doubtful about the matter and that he did not know exactly what to do, that he did not know whether it would be error to send the jury back or whether he should accept the verdict as it was and decide what kind of judgment to render up on the answers of the issues, and again Mr. Yarborough stated that he would be willing to accept the verdict of ’ the jury as it stood and that he thought that as they had answered the other issues in his favor that their verdict would support a judgment in his favor, whereupon K. W. Gilmore again admonished Mr. Yarborough not to talk so loud in the presence of the jury and the Foreman of the jury was standing between the railing and the Judge’s bench and in hearing distance of the conversation, thereupon asked the Court if there was something he-did not understand or if they had made a mistake or words to that effect, and the Court advised the Foreman that “We are just discussing one or two matters and will let you know shortly.’ Or words to that effect and after some hesitation the court stated that he would not accept the verdict and K. W. Gilmore, one of the attorneys for cross-defendant, stated to the court in a low undertone, that if the jury were retired for further consideration, it would be over his protest and he objected to such further consideration, that the jury had not asked for any further instructions either written or oral and had heard the questions and answers read and made no comment or advised the Court of any error or mistake, and as -Special Issue No. 6, requested by Cross-defendant was framed if did not necessarily require an answer to Special Issue No. 7, requested by cross-defendant and that if the Court retired the'jury for further consideration that he should instruct, them to answer Special Issue No. 7, whereupon the Court gave the jury the following instructions:
“ ‘Gentlemen: The Court is of the opinion your verdict is incomplete and I will ask you to retire and consider it further.’
“Whereupon the jury retired and within about thirty minutes returned with their verdict and which verdict showed that the answer to Special issue No. 6, requested by the cross-defendant had been changed from ‘Yes’ to ‘No’ by scratching out the word ‘Yes’ and writing the word ‘No’, and this cross-defendant, in support of this Bill of Exception, respectfully refers to the affidavit by the Trial Court, Hon. C. R. Sutton, attached to its amended motion for a new trial and marked ‘Exhibit A’ and made a part of said motion and to which action of the Court, in retiring the jury for further consideration, and not^ instructing them to answer special requested Issue No. 7, .and the conversation and discussion and deliberation by the Court and the attorney for cross-plaintiff in the presence and hearing of the jury, cross-defendant then and there in open court objected for the following reasons, to-wit: That said verdict of the jury was complete and a finding for the cross-defendant, and that the Special Issue No. 6, requested by cross-defendant did not require the answer to Special Issue No. 7 in order to make said finding complete by the jury for said special issue asked the jury if they found from the preponderance of the evidence that the disability or incapacity sustained by J. T. Bristow, if any, was due to lumbago, and the jury answered that it was, and the failure to answer what percent was due to lumbago did not necessarily or impliedly signify that the jury had rendered an incomplete verdict but their finding and answer to Special Issue No. 6 was a finding that the disability and incapacity suffered by Bristow was due to lumbago, and a complete verdict and for the further reason that the procedure had by the Court and with the attorney in the presence and hearing of the jury, even though they did not hear the remarks of the Court, conveyed to the jury the idea and information that their verdict 'as written might not permit the cross-plaintiff to recover and conveyed to the jury the information as to the effect of their answers and the Foreman standing in dose proximity to the Court and the attorneys, could not help but gain the information that the Court was of the opinion that their verdict and answers to the special issues did not or might not support a verdict for the cross-plaintiff, and in order to make sure that he would recover they retired under the instructions of the Court to complete their verdict, and changed the same, and for the reason that the court was giving oral instructions to the jury in addition to his written charge and notwithstanding the fact that the court may have had -the right to retire the jury for further deliberation it was error to do so in such a manner as would convey the information as to the effect of their answer or even permit the jury to gain such information after they had arrived at a verdict, and then permit them to change the same, and which objections and each and all of them were by the Court overruled and to which action of the Court cross-defendant then and there excepted and here and now in open Court tenders this, its Bill of Exception No. 1, and prays that the same may be examined and approved by the Court and ordered filed as a part of the record in this cause.
“R. B. Blaydes
“Knox W. Gilmore,
“Attorneys for cross-defendant.
“The foregoing bill is approved this 23d day of June, 1930, with the following qualification and explanation:
“The statement contained in the bill that the issues and answers were read in order until No. 6, was completed when the Court stopped and hesitated etc., is not correct. The verdict was received and road in this manner ‘To Special Issue No. 1, the jury answer (giving their answer)’ and this was continued throughout and when No. 6 (Special) was reached the answer was given as in the others and No. 7, reached with the statement that to Special requested Issue No. 7, the jury give no answer.’
“Thereupon the conversation between the Court and the attorneys occurred but in a tone that none of the jury, not even the Foreman could possibly hear or gather what the conversation was about, except that they must have known that there was something wrong with the verdict. The foreman was just inside the rail some 25 feet away and could not possibly have heard anything that was said, and his affidavit which is attached to this qualification is to that effect.
“It is true that Mr. Gilmore admonished Mr. Yarborough not to talk too loud,but it was evident that none of the jury could hear. ,
“The statement that anything was done or said to indicate to the jury what the Court thought ought to be the verdict is incorrect, because nothing was done or said that could indicate to the jury that the Court had any opinion, which the Court did not have, and the jury were retired again for the only purpose of getting the verdict in proper shape so a judgment might without doubt be written on the findings of the jury.
“C. R. Sutton, Judge Presiding.”

The court qualified the bill and attached and made it a part of the record, and an affidavit of the foreman of the jury as follows:

“Before me, the undersigned authority on this day personally appeared Harry Harris, known to be a credible person, who after being by me duly sworn, stated on oath as follows:
“I was foreman of the jury in the case of Petroleum Casualty Company vs. J. T. Bris-tow, in the District Court of Pecos County, 83rd Judicial District of Texas, when the case was tried in March, 1930. I was present during the time that the jury waited in the court room after I had handed the verdict to the court and before the court sent the jury back for further deliberation. During the time that the jury was in the room I stood in front of the other jurors and between them and the judge’s desk and at a distance of about twenty-five feet from the desk. I could not hear any remarks made by the Court or by counsel for either side during the time the jury waited before being returned to the jury room by the Court, and especially heard no remarks by Mr. Yarborough, attorney for Bristow. When the court first read the verdict as the jury had returned it there was nothing in Ms way of reading same thiit indicated to me that anything was wrong with it. I knew from the reading of the verdict however that I had made a mistake in writing down the jury’s answer to the last 'question answered, but I knew this because I knew what should have been written down and realized that I had accidentally reversed the answer.
“Harry Harris, Affiant
“Sworn to and subscribed before me, this the 19th day of June, 1930. .Bruce Hinsey, Notary Public, Pecos County, Texas.”

Appellant assigns as error the action of the court in sending the jury back for further deliberation, .and suggests that what had occurred led the jury to know the effect of their answers with reference to who will recover thereon, and that so knowing, the jury changed their answer as indicated in the bill of exceptions, from “yes” to “no” on special requested issue No. 6, and made no answer to No. 7.

Appellant quotes at length from the evidence and áubmits that the evidence was sufficient to support the finding that Bristow’s disability was due to lumbago.

Appellant assumes, and bases its several propositions upon the assumption, that what occurred advised the jury of the effect of the answer, was in favor of appellant and against the interest of appellee, and that the jury being so advised changed the answer. We must accept the statement of the trial court in his qualification to the bill. Appellant accepted and filed the bill of exceptions as modified by the court and is bound by the qualification. Texas Jurisprudence, vol. 3, p. 657, and note referring to many cases so holding. It will be presumed in the absence of something in the way of a bill of exceptions signed by the judge or bystanders that the qualifications were made with the consent of appellant.

Article 2207 of the Statutes makes it the duty of the court, where the verdict is informal, defective, or not responsive to the issues submitted, to call the jury’s attention ■thereto, and send the jury back for further ■deliberation. The record shows, we think, that the court did no more than it was his duty to do. The jury was bound to know that there was some informality or defect in the verdict to be corrected. In eases submitted on special issues, as here, judgment is not based on any single finding, but upon the entire finding of the jury, and where there is an apparent conflict in the findings on issues submitted, judgment may not be entered until the conflict is removed by the jury. The jury had answered that Bristow had sustained a personal injury in the course of his employment, and that as a result of such injury he had sustained a total permanent disability, in answer to issues 2 and 3. It might very well be reasoned that if his total permanent disability was the result of the injury received in the course of his employment at the time and place indicated, no part of his disability was the result of lumbago. or any other cause. But appellant requested, and the court submitted the questions, whether any of Bris-tow’s disability was due to lumbago, and if it was, answer what per cent. If the jury answered “yes” to the first question, they should .then answer as to the per cent. To answer “yes,” there would then be a possible irreconcilable conflict in the findings. The jury evidently saw the conflict and corrected their findings. The court was not in error in sending the jury hack for further deliberation. The court would not have been in error to have indicated to the jury the defeat in the verdict, if there was no intimation by the court as to what the finding should be, which the record sufficiently shows was not done.

The court submitted to the jury the following:

“What per cent, of disability, if any you have found, do you find was caused to J. T. Bristow, if any, by the accident and injury which he received 'on the 29th day of September, 3909, when falling from a locomotive tender in New Mexico? Answer with the per cent, if any.”

The jury answered, “None.”

Appellant insists that it was reversible error to only ask the jury what per cent, of disability was caused appellee by the previous injury, when the inquiry shouM have been “what per cent, of incapacity would have resulted from the injury complained of had there been no previous injury?”

Section 12c of article 8306, R. S., 1925, provides: “If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed,” the association is liable only for compensation to the subsequent injury. We see no practical difference in the issue submitted from that provided in the statute. The percentage of compensation should he computed on the subsequent injury, hut if the percentage on the previous injury is given, the percentage of the subsequent injury would necessarily. be the complement of the one given. It follows, we think, if no per cent, of incapacity resulted from th'e previous injury, the incapacity suffered, if any, would necessarily be the result of the subsequent injury.

Appellant assigns error to the submission of the issue of payment of compensation in a lump sum, and to enter judgment on the answer of the jury to the issue; the objection being that there was no legal and competent testimony sufficient to show any manifest hardship or injustice.

We have carefully reviewed the evidence and have concluded that it shows a manifest hardship and injustice would result, especially in view of a total permanent incapacity having resulted from the injury. Article 8306, § 15, R. C. S.

The statute does not fix a rate of discount in arriving at the present value of an award payable in weekly installments to be used in arriving at a lump-sum settlement, so that such' rate of discount being an issue of fact must be determined by the jury. The lury found the rate of discount to be 6 per cent. The evidence covers several pages of the record. We think from the evidence it can be safely concluded it shows a rate of six per cent.

A question, reviewing the facts of this particular case, was asked a well-qualified witness, what he would say would be the reasonable rate of interest to pay the deferred payments, when the attorney for appellant remarked: “The statute fixes that. I agree that past due installments should bear 6% ■if he (meaning appellee) is entitled to compensation.” The record does not show that the witness answered the question. While we think the evidence sufficiently shows that 6 per cent, would be the rate, the statement of the attorney may be admission of record, and relieved the necessity of additional evidence, if any was necessary.

The record shows the following: This case was filed November 5, 1928; the next term of the court was begun on March 11, 1929, and the first trial was on March 18, 3.929; an appeal was taken from that trial and the mandate from the appellate court was filed in the trial court on March 6, 1930; in the trial court this trial was set March 10 or 12, 1930, for trial on March 18, 1930. The record shows that before the mandate was returned some correspondence was had between the attorneys of the parties in an effort at a compromise but without result. On March 12, 1930, the attorney for appellant was notified of the setting of the case for trial. On March 18, 1930, appellant filed its motion asking the trial court to select a physician or physicians known to the court to be competent and trustworthy, and enter an order directing the appellee to be physically examined, etc. The bill of exceptions is lengthy covering several pages of the transcript, the subject-matter in the bill of exceptions includes a conversation, apparently in the presence of the court, between the attorneys for the parties, as to some former examinations and treatments by physicians of appellee. At the conclusion of the conversation the court said: “I will appoint Mr. (Doctor) Moore to make the examination again, provided he can do it between now and two o’clock.” To which the attorney for appellant replied:

“For the sake of the record we want to save an exception to that on the ground that Dr. Moore is not equipped with an X-ray machine, and the very nature of the inquiry necessitates an examination by doctors equipped with X-ray machines to disclose- what percent of disability, if any, what percent of ■toxic poison, if any, is the result of the previous injury, and this is the first opportunity we have had since the case was reversed to have sucli examination. I will announce ready, provided I don’t have to put on any testimony before tomorrow. I wired my witnesses and told them it would be tomorrow before we would get to it anyway.”

The court: “I don’t think so.”

Then follow in the same bill of exception as to what occurred after the trial on the merits was concluded. Excerpts from the testimony of appellee on the former trial introduced, showing that appellee was under treatment by Drs. Fry and Lott, of Dallas, appellant having requested him to call on Dr. Lott for examination; witness stated his physical condition while in Dallas' several weeks and the treatment by the physicians: stated that he did what the doctors required him to do; the testimony of Dr. Lane B. Cook, as found in the statement of facts, who was called in consultation by Dr. Fry, and referred appellee’s case to him for treatment and advice, and who had made an X-ray of appellee, and who still had the picture, and testified on the trial, was introduced over objection of appellant. Dr. Lott’s report to appellant, on his examination with Dr. Fry, was introduced. After hearing the evidence as above, the court, over objection of appellant, appointed Dr. Moore of Fort Stockton to make the examination of appellee; the objection being that Dr. Moore was not equipped with an X-ray machine, and that the nature of the injury claimed necessitated the examination by doctors so equipped, to disclose what per cent, of disability, if any, wás occasioned by toxic poison, was the result of any previous injury or disease, and for the reason that appellant had not had an opportunity to have said examination made and treatment provided as was offered, and that it was error for the court to refuse to compel appellee to submit himself to examination by doctors appointed by the court equipped to make the examination.

The court qualified the bill of exceptions by the statement that the case had been set for trial for the date it was called; that the motion for examination of appellee was filed on the date the trial began and previously set; that appellant did not request any particular doctor, but requested that the court appoint a doctor- to examine appellee, and on the hearing requested that it be an X-ray examination, which the court declined to do, because it was ascertained by the court that 'a doctor equipped with an X-ray machine was not available and there was none available. Dr. Moore was appointable because he had previously examined appellee, and no objection was made by appellant to bis appointment, but to tbe failure of tbe court to cause an X-ray examination.

Tbe proposition suggesting error is along the line indicated in tbie above bill of exceptions and to tbe effect that appellee alleged that be was permanently and totally incapacitated by reason of a strained, separated, dislocated, and broken saoroilliae .joint, .it was error to appoint Dr. Moore who was not equipped with X-ray machines to make tbe examination while tbe nature of the injuries necessitated, an X-ray picture to determine tbe alleged injury, its extent and duration.

Section 4, of article 8307, of the Statutes, gives appellant tbe privilege of having ap-pellee examined by a physician at -reasonable times, a-t a place suitable to tbe condition of appellee and convenient and accessible to him. Here, no objection on tbe part of appellee to have an examination is shown. He was willing. Tbe point made is the action of the court in overruling tbe motion for the appointment of a physician equipped with an X-ray machine, and at the time and under the circumstances shown. To have sustained the motion would have necessitated a postponement and probably a continuance of the case for the term. No motion for a postponement or continuance for the purpose of such examination was made, but knowing the action of the court on the motion appellant announced' ready for trial. The only question presented is one of diligence in presenting the motion and demanding an X-ray examination. The trial court did the best he could under the circumstances, and have a trial at that term, in appointing a physician to make the examination.

We have concluded that the record presents no reversible error. On the former trial the case was reversed and remanded for another trial. Appellee had formerly been under the treatment of physicians selected by appellant who had taken X-ray pictures of appellee, and appellant must have known long before the ease was set for trial of the necessity and advisability of such additional examination, if such was the case, in view of another trial. It is not alleged nor attempted to be shown that appellee’s condition (as to his injury is any different from what it was at the former ■trial. No abuse of the court’s discretion in not acceding to appellant’s demand for an X-ray examination is shown, and the proposition is overruled. Texas Employers’ Ins. Ass’n v. Adcock (Tex. Civ. App.) 27 S.W.(2d) 363; Employers’ Liability Assur. Corporation v. Williams (Tex. Civ. App.) 293 S. W. 210; Texas Employers’ Ins. Ass’n v. Knouff (Tex. Civ. App.) 271 S. W. 633; Texas Employers’ Ass’n v. Downing (Tex. Civ. App.) 218 S. W. 112; United States Fidelity & Guaranty Co. v. Nettles (Tex. Civ. App.) 21 S.W.(2d) 31.

It was not error for the court to find that ap-pellee filed his claim for compensation within six months from the date of injury and gave the notice of such filing, and not submit to the jury whether such claim was filed in time. .No controversy in the evidence is made that the claim was not filed in time. Again, appellant’s petition alleges the facts, which relievos against the necessity of such finding or proof of such finding.

The witness A. W. Dunn was permitted to say, on a purely hypothetical question as to the rate of discount to be allowed, that he “could not say in a case of that kind. I could; not say whether 8 or 10% would be reasonable in a case of that kind; I am not in possession of facts on that.” There was no answer to the question. No error is shown.

Appellee was asked: “In your opinion will you ever be able to work again?” To which he answered: “No.”

The weight of authority in this state is that an injured party claiming damages may, after describing the nature and extent of his injuries, and the effect thereof upon his physical system, give his opinion as to the probable effect of such injuries upon his earning capacity in the future. Texas Employers’ Ins. Ass’n v. Davies (Tex. Civ. App.) 6 S.W.(2d) 792, and cases there cited.

The case is affirmed.