Texas Employers' Ins. Ass'n v. Moreno , 260 S.W. 283 ( 1924 )

COBBS, J.

Appellee brought this suit against appellant for compensation for alleged injuries sustained by him, on or about June 10, 1922, while in the employ of Wagner & Schillers, general contractors, who were engaged in erecting a building, and who carried a policy 'issued by appellant, which gave to appellee his right to compensation for his injuries under the laws of Texas.

The case was tried with a jury upon special issues, and upon their answers thereto the trial court entered judgment in favor of appellee against appellant for $2,-213.71.

The verdict of the jury was rendered February 8, 1923, and no motion for new trial was filed until March 3, 1923, more than two days after the verdict.

Appellee requests the court to dismiss the appeal, because Rev. St. art. 2023, expressly requires that such motions “shall be made within two days after the rendition of verdict.” That was a matter entirely for the determination of the district court, who considered and acted upon the motion, notwithstanding, and we are bound thereby, and will not go into nor inquire into the action of the court; it being a matter wholly within the discretion of the court trying the cause to consider or not consider. Having considered and acted upon the motion, the case is properly before us.

There was much testimony introduced, pro and con, on the material issues, and we shall not attempt to set it out or pass upon it, because from the view we take of this case it must be Reversed entirely upon a question of law.

The' jury found there was no “total and permanent loss of the use of his left arm; but there was a 50 per cent, permanent disability in the use of his left arm, caused by the injury sustained by him,” and upon which finding the court entered the following lump sum judgment:

“The court is of the opinion that under the answers to the special issues and under the evidence the plaintiff is entitled to recover from the defendant compensation for total incapacity for a period of 200 weeks at the rate of 38.65 per week, totaling $1,730, and that plaintiff is also entitled to recover compensation for 50 per cent, permanent disability in the use of his left arm for 200 weeks at the rate of $4.32 per week, totaling $864. The court is also of the opinion that the payment of said compensation in weekly installments would work manifest hardship and injustice, said payments being inadequate to meet the necessities of the beneficiary, and therefore said weekly payments are reduced to one payment, which, allowing 5 per cent, discount on future installments under the New Jersey Table of Discounts, amounts to a total of $2,213.71.

“It is therefore on this the 3d day of March, 1923, ordered, adjudged, and decreed by the court that the plaintiff, Bartelo Moreno, do have and recover of and from the defendant, Texas Employers’ Insurance Association, the sum of $2,213.71, together with interest thereon at the rate of 6 per cent, per annum from this 8th day of February, 1923, until paid, together with all costs in this behalf expended, for all of which let execution issue.”

No authority has been cited in point, by appellee, that in any way sustains this lump sum judgment.

Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 33, alone provides for cases in which lump sums may be entered, and that is when “total permanent incapacity results from an injury.” But the jury found this issue against appellee. This article thus restricts and limits the recovery of lump sums, oy “excluding any other character of lump sum settlement save and except as herein specified.” But the power to increase the amount of weekly payments at a definite sum and for a definite period is a function of the Industrial Accident Board, and, notwithstanding any award or final judgment of any court of competent jurisdiction, the injured person may always appeal- to it for relief. Where the “compensation being paid is inadequate to meet the necessities of the beneficiary, tíie board shall have tbe power to increase the amount of compensation by correspondingly decreasing the number of weeks for which the same is to be paid, allowing such discount to the company increasing such payments as is applicable in cases of lump sum settlement.” Just such contingency as has arisen here, or may arise, has been foreseen and regulated by státute. But no such power is vested in the courts, except it be in ease of death or total permanent incapacity. Article 5246 — 33.

We would, if we could, correct the error of the court and provide for weekly payments, but the testimony is in no condition that enables us to work it out.

We do not regard it an open question that any judgment for a lump sum may be entered, except as in cases provided for by the statute above cited. Huson’s Tex. Work. Comp. §§ 165-202; Tex. Emp, Ass’n v. Pierce (Tex. Civ. App.) 230 S. W. 872; Ætna Life Ins. Co. v. Rodriguez (Tex. Civ. App.) 255 S. W. 447.

For the reasons given, the judgment of the trial court is reversed and the cause remanded for another trial.