Opinion
No. 3489.
March 18, 1937. Rehearing Denied April 15, 1937.
Appeal from District Court, Harris County; Roy F. Campbell, Judge.
Suit under the Workmen's Compensation Act by A. B. Fortenberry against the Consolidated Casualty Insurance Company, the workmen's compensation insurance carrier of plaintiff's employer, to set aside a compromise settlement agreement and the approval thereof by the Industrial Accident Board. From a judgment in favor of the plaintiff, the defendant appeals.
Reversed and remanded.
On May 11, 1932, appellee, an employee of Sinclair Refining Company, sustained an accidental injury in the course of his employment which disabled him for a time. He returned to work and on June 27, 1933, he was again injured and disabled. He again returned to work, and April 3 or 4, 1934, he alleges he suffered a stroke of paralysis which totally and permanently disabled him; that this stroke was caused by his former injuries, and that for some time thereafter he was paid compensation. On October 25, 1934, in consideration of $1,976.84 appellee entered into a compromise settlement agreement with appellant, the workmen's compensation insurance carrier of the Sinclair Company. Later appellee brought this suit to set aside said agreement and the approval thereof by the Industrial Accident Board. Appellee alleged he was induced to enter into the agreement by the false and fraudulent representations of appellant's agents, King and Wood: (1) That his injuries and disability were not of a serious nature and he would recover therefrom in a few months; (2) that said agents told plaintiff the doctors who had treated him advised that his injuries and disability were not of a serious or permanent nature and he would recover therefrom in a few months; (3) that said agents told plaintiff, in connection with the proposed settlement, he would be given back his job with the Sinclair Refining Company when he was able to resume his work. As to this last-stated representation the jury found same was not made by said agents. As to the two first-stated representations the court submitted separate questions inquiring whether King and Wood, or either of them, made such representations, and findings were returned in plaintiff's favor. Supplementing same, it was also found the representations were made and intended as statements of fact rather than of opinion; same were false; the parties making same had knowledge of the falsity thereof; the statements were made for the purpose of inducing plaintiff to sign the agreement; that said statements operated as a material inducement to plaintiff to sign the agreement; that a person of ordinary prudence, under the same or similar circumstances as was plaintiff, would have believed such representations; that such a person would have relied upon such representations. Other findings were that the injuries received by plaintiff naturally resulted in total incapacity; such total incapacity is permanent; plaintiff exercised due diligence in employing attorneys and instituting suit for the purpose of attempting to set aside the agreement; and the incapacity of plaintiff is not solely the result of disease brought about by or resulting from causes other than the injuries received in the course of his employment.
Upon the findings stated, judgment was rendered in plaintiff's favor granting the relief sought.
W. M. Ryan and Baker, Botts, Andrews Wharton, all of Houston, for appellant.
Blake Cunningham and Mandell Combs, all of Houston, for appellee.
1. The court defined the phrase "material inducement" the same as it was defined in H. W. Broaddus Co. v. Binkley, 126 Tex. 374, 88 S.W.2d 1040; Id. (Tex.Civ.App.) 54 S.W.2d 586. The same objection was here made by appellant to the definition as was made in that case. In an opinion by the Commission of Appeals, adopted by the Supreme Court, the definition, as applied to the facts of that case, was held not to be correct. We are unable to distinguish, as appellant seeks to do, this case from the Broaddus Case. Undoubtedly, one of the factors inducing appellee to make the settlement was the substantial cash consideration of $1,976.84. The case therefore, as in the Broaddus Case, presents a factual situation of an inducing factor other than the false representations alleged. In deference to the ruling in the Broaddus Case, appellant's proposition complaining of the definition is sustained.
2. To the questions submitted inquiring whether the representations alleged were made by King and Wood, or either of them, appellant objects upon the ground of duplicity. The grouping of facts in a single question, as distinguished from the grouping of distinct ultimate issues, is permissible and often indispensable. Speer on Special Issues, §§ 185-94-187 and 190.
The questions stated are not subject to the objection urged against them. Rotge v. Dunlap (Tex.Civ.App.) 91 S.W.2d 905, in which a writ of error was granted, but upon another point. See Texas Syllabi of May 13, 1936. Also, see, Ford Motor Co. v. Whitt (Tex.Civ.App.) 81 S.W.2d 1032; Hunter v. B. E. Porter (Tex.Civ.App.) 81 S.W.2d 774, 775; Dunning v. Badger (Tex.Civ.App.) 74 S.W.2d 151; Powell v. Rockow (Tex.Civ.App.) 58 S.W.2d 536, affirmed (Tex.Com.App.) 92 S.W.2d 437; Texas Indemnity Ins. Co. v. Holloway (Tex.Civ.App.) 30 S.W.2d 921; Austin v. DeGeorge (Tex.Civ.App.) 55 S.W.2d 585; Fox v. Dallas Hotel Co., 111 Tex. 461; City of Abilene v. Moore (Tex.Civ.App.) 12 S.W.2d 604; Traders' General Ins. Co. v. Copeland (Tex.Com.App.) 84 S.W.2d 813; Blalock v. Jones (Tex.Civ.App.) 1 S.W.2d 400; Fischer v. Rio Tire Co. (Tex.Com.App.) 65 S.W.2d 751; Clifton Mercantile Co. v. Gillaspie (Tex.Civ.App.) 7 S.W.2d 906, affirmed (Tex.Com.App.) 15 S.W.2d 607; City of Waco v. Roberts (Tex.Civ.App.) 12 S.W.2d 263, affirmed 121 Tex. 217, 48 S.W.2d 577; Continental Ins. Co. of New York v. Nabors (Tex.Civ.App.) 6 S.W.2d 151; Kansas City Life Ins. Co. v. Fisher (Tex.Civ.App.) 83 S.W.2d 1063.
3. In the preliminary instructions the court charged the jury to answer the issues from the preponderance of the evidence, that is the greater degree and weight of credible evidence before it.
This general instruction should not have been given. Texas Employers' Ins. Ass'n v. Lemons, 125 Tex. 373, 83 S.W.2d 658; Gattegno v. The Parisian (Tex.Com.App.) 53 S.W.2d 1005.
4. In order for plaintiff to obtain the relief sought in this case it was necessary for him to plead and prove, as he did, that he was totally and permanently incapacitated as a result of his injuries, thereby showing he was entitled to greater compensation than was paid him in settlement. Defendant's general denial placed in issue the question of total and permanent incapacity, and issues inquiring as to partial and temporary incapacity were submitted, but the latter issues were submitted conditional upon negative findings upon the issues of total and permanent incapacity. In consequence of their conditional submission and previous findings that plaintiff was totally and permanently incapacitated, the issues as to partial and temporary incapacity were not answered. Appellant assigns error to the conditional submission of the issues of partial and temporary incapacity. If the evidence raises an issue in that respect, the conditional submission thereof was erroneous. Traders' General Ins. Co. v. Forrest (Tex.Civ.App.) 78 S.W.2d 987; Traders General Ins. Co. v. Shanks (Tex.Civ.App.) 83 S.W.2d 781; Traders General Ins. Co. v. Wimberley (Tex.Civ.App.) 85 S.W.2d 343.
But the testimony to which appellant refers in its brief does not raise the issue. It presents the issue that plaintiff's present incapacity is not due to his injuries at all, but to disease brought about by or resulting from causes other than the injuries which he had previously received in the course of his employment. In this condition of the evidence no issue as to partial and temporary incapacity should have been submitted at all and the conditional submission thereof was harmless. Traders General Ins. Co. v. Babb (Tex.Civ.App.) 83 S.W.2d 778.
Upon retrial such issues should be unconditionally submitted if they are raised by the evidence.
5. Appellant also assigns error to the refusal to submit an issue inquiring whether plaintiff, at the time of making the settlement, did not understand the true nature and probable duration of his disability. We doubt if the evidence raises such issue, but the case must be reversed for the errors above indicated, and in view of retrial we refrain from discussing the evidence. If, upon retrial, the issue is raised, it is defensive matter [Traders' General Ins. Co. v. Bailey (Tex.Com.App.) 94 S.W.2d 134], and should be submitted.
Reversed and remanded.