Service Mut. Ins. Co. v. Blain

• Citation: 168 S.W.2d 854
• Decision Date: 17 February 1943
• Docket Number: No. 1920-7977.,1920-7977.
• Parties: SERVICE MUT. INS. CO. OF TEXAS v. BLAIN et al.
• Court: Supreme Court of Texas

168 S.W.2d 854

SERVICE MUT. INS. CO. OF TEXAS v. BLAIN et al.

No. 1920-7977.

Commission of Appeals of Texas, Section B.

February 17, 1943.

Rehearing Denied March 17, 1943.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action under the Workmen's Compensation Act by Mrs. Bertha Blain, for herself and her minor children, against the Service Mutual Insurance Company of Texas to recover compensation for the death of J. H. Blain from injuries sustained in the course of his employment by the Jones Fine Bread Company. A judgment sustaining a general demurrer to the petition was reversed and the cause remanded by the Court of Civil Appeals, 159 S.W.2d 538, and defendant brings error.

Judgment of Court of Civil Appeals reversed and that of trial court affirmed.

W. E. Cureton and Scott & Wilson, all of Waco, for appellant.

George Clark, Charles Mooney, and John B. Fisher, Jr., all of Waco, for appellees.

TAYLOR, Commissioner.

In this case Mrs. Bertha Blain (hereafter called plaintiff), wife of J. H. Blain, deceased, sought recovery for herself and minor children of workmen's compensation against the Service Mutual Insurance Company of Texas. The trial court sustained a general demurrer to the petition and the Court of Civil Appeals reversed and remanded the cause. 159 S.W.2d 538.

It appears from the trial petition (plaintiff's second amended) that the employer of Mr. Blain was Jones Fine Bread Company, which was engaged in the business of manufacturing and selling bread, and that in the course of this employment he sustained an injury from which he subsequently died. It is for his death resulting from this injury that recovery is sought by Mrs. Blain, and it appears from the petition that the recovery sued for is compensation under the terms of, and as measured by, the workmen's compensation laws of this state.

The writ of error was granted upon the application of the insurance company under the view that the trial court correctly sustained the demurrer and that the Court of Civil Appeals erred in not affirming the trial court's judgment dismissing the case.

The record before us is from the second trial of the case. It was first tried during the life of Mr. Blain and the question was raised at that time whether his failure to have a health certificate as required by section one of article 705c of Vernon's Annotated Penal Code barred a recovery by plaintiff under the workmen's compensation act, Vernon's Ann.Civ.St. art. 8306 et seq. Upon the first trial the trial court awarded plaintiff a recovery of workmen's compensation. The Court of Civil Appeals, 135 S.W.2d 745, reversed the judgment on a question of improper argument but, in view of the fact that the question of whether an employee's failure to have a health certificate at the time of his alleged employment under the workmen's compensation law barred a recovery of such compensation was then pending in this Court in the case of Traders & General Insurance Company v. Rogers, Tex.Civ. App., 119 S.W.2d 679, merely reversed the cause, stating it would serve no useful purpose to discuss the question upon that appeal as the Supreme Court would likely decide the question in the Rogers case (which it did) before the Blain case reached the Court of Civil Appeals after a second trial.

The plaintiff in her petition alleged (in addition to the usual facts of jurisdiction and the circumstances under which Mr. Blain sustained injury) that Mr. Blain was injured on May 6, 1938, resulting in his death on April 17, 1939. She further alleged that at the time of his employment in April, 1938, the following:

"He (Mr. Blain) was not infected with or affected by any infectious or contagious disease, and that he did not have any contagious or infectious disease between the date he began work at the Jones Fine Bread Company and the date of his injury on the 6th day of May, 1938, nor during the time that he was working at the plant of the Jones Fine Bread Company, Inc., during the year 1938. * * * It is further shown to the Court in this connection that when the deceased W. A. Blain was injured on the 6th day of May, 1938, he was carried to the hospital and attended and examined by Dr. C. G. Catto, * * * an employee of * * * Service Mutual Insurance Company of Texas, and acting under authority of the * * * Company * * * in making such examination * * *; that the said Dr. C. G. Catto * * * did not find that the said W. A. Blain was suffering from * * * or * * * affected by any contagious or infectious disease, and said doctor made reports of his examination to the * * * Insurance Company * * * within forty-eight hours after the date of the deceased's injury and during the period that * * * Dr. Catto attended and treated the deceased, W. A. Blain, for the next several days after the 6th day of May, 1938. That * * * Dr. Catto was a duly licensed physician, licensed under the laws of the State of Texas and having his license registered in McLennan County, Texas, and * * * was then residing in McLennan County, Texas, at the time of said examination; that thereafter on the 12th day of May, 1938, the said W. A. Blain was examined by Dr. H. Jaworski, a doctor of deceased's selection, a duly licensed physician under the laws of the State of Texas, having his license registered in McLennan County, Texas, and that said doctor found that the said W. A. Blain was not suffering from * * * and was not affected by any contagious or infectious disease, and that the said fact was learned by the said Service Mutual Insurance Company of Texas prior to the auditing of the payroll of the Jones Fine Bread Company in January of 1939, as hereinafter alleged; and that the * * * Insurance Company * * * was informed * * * prior to the audit of Jones Fine Bread Company's bakery for the year 1938 and had knowledge that the said W. A. Blain was not suffering from any contagious or infectious disease at the time of his employment by the Jones Fine Bread Company or at any time during such employment * * *.

"In this connection it is shown to the court that the deceased, W. A. Blain, was at all times willing to submit to any medical examination required by his employer, Jones Fine Bread Company, and that he did not intentionally violate the regulatory provision of Chapter 356 of the 45th Legislature, Acts of 1937, Page 707, hereinafter designated as Article 705c of the Penal Code, and that his employer, Jones Fine Bread Company, did not intentionally violate the regulatory provision of said Article 705c * * * requiring the employer to require the certificate as hereinbefore alleged."

The nature of the deceased's, W. A. Blain, employment was also alleged as follows: "That on or about the 6th day of May, 1938, and for several weeks prior thereto, the deceased, W. A. Blain, was working for the Jones Fine Bread Company, Inc., as a house mechanic; that he was not engaged in handling or making bread, nor making wrapping, slicing, or dispensing bread, but that his duties were confined to the installing, repairing, and greasing of the machines in said plant, and to the washing, repairing and tending the boilers and furnaces used in connection with said plant, and the...