Cook v. City of Austin , 161 Tex. 294 ( 1960 )

340 S.W.2d 482 (1960)

Tommie Lee COOK, Petitioner,
v.
CITY OF AUSTIN, Respondent.

No. A-7840.

Supreme Court of Texas.

November 30, 1960.

F. L. Kuykendall, Byrd & Davis, Austin, for petitioner.

Doren Eskew, City Atty., C. J. Taylor, Jr., Asst. City Atty., Austin, for respondent.

PER CURIAM.

Judgment for the plaintiff against the City of Austin in a workmen's compensation case was reversed and remanded by the Court of Civil Appeals. 333 S.W.2d 398.

The reversal was predicated on the refusal of the trial court to permit the City of Austin to offer testimony on the trial of the case that an operation would ameliorate the claimant's injury on the ground that the City of Austin had denied liability and had not tendered an operation while the claim was pending before the Industrial Accident Board. Since this decision is in conflict with two recent cases decided by this court, namely, Truck Insurance Exchange v. Seelbach, Tex., 339 S.W.2d 521, and Texas Employers' Insurance Ass'n v. Shelton, Tex., 339 S.W.2d 519, we therefore reverse the same on the application for writ of error without the necessity of granting the writ and hearing the case. Rule 483, Texas Rules of Civil Procedure.

There were other points on the appeal not expressly passed upon by the Court of Civil Appeals, however, and we therefore remand the cause to the Court of Civil Appeals for further consideration.