Maryland Casualty Co. v. Long ( 1928 )

On Motion for Rehearing.

In the motion for a rehearing, counsel for appellant- insist that the judgment awarding a lump sum to the appellee was error, because that issue was not submitted to or passed upon by the jury. In the case of Texas Employers’ Ins. Ass’n v. Wright, 4 S.W.(2d) 31, the Commission of Appeals held that the right to a lump settlement was an -independent issue, and where it was not submitted, nor requested to be submitted, in whole or in part, it was waived by the plaintiff, and the trial court has no authority to render judgment thereon in favor of the complainant. If the failure to submit that issue deprived the court of “authority” to render a judgment awarding a lump settlement here, the claim was fundamental, and should be noticed at any stage of the proceedings when it is called to our attention.

However much we may feel inclined to differ with the holding of the Commission of Appeals in the case above referred to, we feel it our duty to conform our lulling to a precedent which the Supreme Court has approved. The judgment of the trial court and the judgment of affirmance heretofore rendered in this case will therefore be modified, so as to award the appellee the sum of $10.38 per week for 401 weeks.