Texas Employers' Ins. Ass'n v. Ray

On Motion for Rehearing. Without conceding his right to complain of the reversal of the judgment of the trial court for the reason stated in our opinion on original hearing, appellee now offers to waive his right to a lump sum settlement, and in lieu thereof moves for a final judgment of this court, reforming the judgment of the trial court so as to allow him compensation for a period of 401 weeks at $20 per week, by reason of his total incapacity to labor as found by the jury, less credits recited in the judgment. Texas Employers' Ins. Ass'n v. Moreno (Tex.Civ.App.) 260 S.W. 283, affirmed by the Supreme Court in 277 S.W. 84, is cited in support of that motion.

In reply to that motion, appellant contends that other assignments of error presented in its brief show grounds for reversal of the judgment, additional to the one sustained on original hearing, but not determined by us, and prays that the same be now considered; which will be done.

After a careful consideration of the record, a recital of which would unnecessarily prolong this opinion, we deem it sufficient to say that there is no merit in the assignments of error presenting the contentions that in one of the issues submitted, the court assumed as true a material contested issue of fact; that another issue had no proper basis in appellees' pleadings; that the finding of the jury on another material issue was not supported by sufficient evidence.

Another assignment to remarks made by the trial judge in connection with his action in sustaining an objection to a question propounded to a witness by counsel for appellant is without merit, since the record fails to show that appellant reserved a bill of exception to that remark.

We overrule another assignment to the action of the court in sustaining an objection to questions propounded to appellee on cross-examination seeking to show that he had money on hand during a part of the time for which he sought compensation, since the bill of exception to that ruling fails to show what appellant expected to prove and probably would have elicited from the witness but for that ruling.

By several assignments complaint is made of a statement of counsel for appellee in the opening argument to the jury, to the effect that appellee would be deemed totally incapacitated to work within the meaning of the Workmen's Compensation Law (Vernon's Ann.Civ.St. arts. 8306-8309), if, by reason of his injury, he was no longer able to follow the occupation in which he was employed, to wit, as an iron steel worker. No objection was made to those arguments at the time of trial; the first objection thereto being urged in appellant's motion for new trial. It is well settled by the decisions in our higher courts that failure to object to improper argument, especially calculated to work injury to the opposing party at the time the argument is made, is not a waiver of right to complain of it later. But it is our conclusion that the arguments complained of here do not show reversible error, since no evidence is cited, and we have found none, tending to contradict testimony of appellee, which was corroborated by that of his wife and other witnesses, in substance, that by reason of the injury to his foot, which the jury found permanently disabled him, he could not walk or stand on it for a sufficient length of time to do any character of work, and that the only work to which he was accustomed was that of iron and steel worker, in which he was engaged at the time of his injury. Furthermore, the argument was not such that its possible harmful effect, if any, could not have been removed by its withdrawal, either by counsel who made it, or by the court, if objection had been made thereto at the time, and therefore appellant has waived its right to complain of it here. Bobbins v. Wynne, 44 S.W.2d 946, opinion by Commission of Appeals, especially approved by the Supreme Court.

Appellant is in no position to complain of the absence of any finding by the jury on the requested issue as to whether or not plaintiff's injury only partially disabled him to work, in the absence of any exception to the court's instruction not to answer that issue if in answer to other issues they had already found that his injury wholly and permanently disabled him to work. Article 2185, Rev.Civ.St. 1925. Failure to find on other issues presents no reversible error for the same reason, and further because they became immaterial in view of findings shown in the verdict.

We adhere to the conclusions reached on original hearing that there was error in the judgment awarding a lump sum settlement; but in compliance with appellee's request therefor, our former order reversing the judgment of the trial court in its entirety and remanding the cause, is set aside; and, in lieu thereof, judgment is here rendered reforming the judgment of the trial court so as to allow plaintiff a recovery from defendant, appellant here, as of date October 6, 1932, the date of judgment in the trial court, for the sum of $1,550, with interest thereon from said date at the rate of 6 per cent. per annum, together with costs of suit in the trial court, for which he may have his execution; and further decreeing to plaintiff an award for total and permanent disability under the terms and provisions of the Workmen's Compensation Law of this state for 298 weekly installments of $20 each, beginning October 13, 1932, with interest thereon from their respective due dates at the rate of 6 per cent. per annum. And as so reformed the judgment of the trial court is affirmed. The costs of appeal are taxed against appellee.