American Mut. Liability Ins. Co. v. Thomas

• Decision Date: 15 January 1931
• Docket Number: No. 9489.,9489.
• Citation: 35 S.W.2d 232
• Parties: AMERICAN MUT. LIABILITY INS. CO. et al. v. THOMAS.
• Court: Texas Court of Appeals

35 S.W.2d 232

AMERICAN MUT. LIABILITY INS. CO. et al. v. THOMAS.

No. 9489.

Court of Civil Appeals of Texas. Galveston.

January 15, 1931.

Rehearing Denied February 5, 1931.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Suit by Saul Thomas against the American Mutual Liability Insurance Company and another to set aside an award of the Industrial Accident Board, in which defendants filed a cross-bill. Judgment for plaintiff, and defendants appeal.

Reformed and affirmed.

Baker, Botts, Parker & Garwood, and John P. Bullington, all of Houston, for appellant Insurance Company.

Howell & Howell, of Beaumont, for appellant Myrtle Kirtman Thomas.

George P. Prendergast and Henry O'Dell, both of Galveston, and Charles E. Fernandez, of Franklin, La., for appellee.

LANE, J.

One Oliver Thomas, now deceased, was on and for some time prior to the 1st day of January, 1929, in the employ of Young & Suderman, Inc., a subscriber as that term is used in the Employers' Liability Act of the State of Texas.

The American Mutual Liability Insurance Company, hereinafter, for convenience, called the insurance company, was the insurer for Young & Suderman under said act.

Oliver Thomas, who was the son of Saul Thomas, was entitled to the benefits of the Employers' Liability Act at the time of his death, which occurred on the 1st day of January, 1929, while he was engaged in the course of his employment.

After the death of Oliver Thomas, one Myrtle Kirtman, claiming to be the common-law wife of the deceased, gave notice of his death in time and manner as required by law, and on the 16th day of January, 1929, filed with the Industrial Accident Board a claim for the death of Oliver Thomas, and the insurance company began to pay her compensation at the rate of $13.85 per week.

Thereafter, on May 4, 1929, Saul Thomas, father of the deceased, Oliver Thomas, intervened in the claim demand of Myrtle Kirtman pending before the Industrial Accident Board and filed his claim for compensation for the death of his son with said board. He contested before the board the payment of the compensation demanded by Myrtle Kirtman.

On the 17th day of June, 1929, the board entered its final order and award in favor of Myrtle Kirtman, upon its finding that she was the common-law wife of Oliver Thomas at the time of his death. Thereafter Saul Thomas, in due time and manner, gave notice of his dissatisfaction with the award of the Industrial Accident Board and in due time filed this suit in the district court of Galveston county, attaching to his petition a copy of the award of the board in favor of Myrtle Kirtman against the insurance company, making the insurance company and Myrtle Kirtman and her attorneys, Howell & Howell, parties defendant.

The plaintiff alleged that he had employed attorneys Henry O'Dell, George Prendergast, and Charles E. Fernandez to institute his suit and had agreed to pay them for their services one-third of any sum he might recover in the cause. He alleged that at the time Oliver Thomas died he was earning a weekly wage of $23.08. He prayed that the award of the board be set aside and that he have judgment against the insurance company for the sum of $13.85 per week for a period of 360 weeks, beginning on the 1st day of January, 1929, for interest, and costs of suit, and that one-third of such award be adjudged to his said attorneys.

The insurance company, which had also given due notice of its dissatisfaction with the award made by the Industrial Accident Board and which had been made a party defendant in this suit, filed its answer and cross-bill. It demurred generally to the allegations of the plaintiff, made general denial, and in the alternative it alleged that if Oliver Thomas did die as a result of injuries as alleged by the plaintiff and it is liable to the beneficiaries of the deceased under the terms of the Workmen's Compensation Act of Texas, then in that event it offers to pay any amount for which it may be so liable to the person or persons entitled to the same; that by reason of the uncertainty as to whom such compensation should be paid, it should not be charged with any portion of the cost incurred in this suit. It prayed that the award of the Accident Board be set aside and that it have judgment for costs of court and such further relief to which it may be entitled both in law and equity.

Defendant Myrtle Kirtman filed her answer and cross-action. She demurred generally to the allegations of the plaintiff's petition, specially excepted to so much of the plaintiff's petition as alleged that she was guilty of fraud which prevented plaintiff from sooner giving the notice of the death of Oliver Thomas and from presenting his claim to the Accident Board, because such allegations were irrelevant and immaterial and have no bearing upon the issues involved and are prejudicial to the rights of defendant. She denied the allegations of the plaintiff's petition.

Becoming actor, she complains against the plaintiff, his attorneys, and the insurance company. She alleges the death of Oliver Thomas; his employment by Young & Suderman, a subscriber; the issuance of the policy by the insurance company; that she was the common-law wife of Oliver Thomas at the time of his death, and is entitled to compensation as the sole beneficiary by reason of the death of Oliver Thomas; that at the time of the death of the deceased his weekly wage was $24, and that under the provisions of the Workmen's Compensation Act she was entitled to a recovery from the insurance company of the sum of $13.85 per week for 360 weeks from the date of the death of the deceased; that in the event she is mistaken with reference to the term of the deceased's employment, then she says that $4 per day was the usual wage paid others who were similarly employed as was the deceased by the same or similar employers; that the insurance company paid her compensation at the rate of $13.85 per week for a period of 16 weeks and then failed and refused to pay her any further sum; that upon such refusal she filed her claim with the Accident Board, and upon a hearing by such board it made an award in her favor; she alleged reasons why she should receive a lump sum settlement.

By supplemental petition, plaintiff alleged that Oliver Thomas was his son by his first wife, Georgiana, who was at the time of the death of said son also dead; that Oliver was the only child of himself and his deceased wife; that Oliver Thomas from time to time prior to his death contributed sums of money to him without which he could barely have existed, as he was unable to obtain the necessities of life; that his only means of living was from a small truck farm owned by his second wife; that his physical condition for more than twenty years was such as to incapacitate him from doing any hard labor. He denied generally the allegations of defendant's answer except such facts as he had alleged in his petition.

By supplemental answer the insurance company denied generally the allegations of the defendant Myrtle Kirtman.

All demurrers and special exceptions of both defendants were by the court overruled.

After instructing the jury as follows:

"A common-law marriage exists when a man and a woman enter into an agreement to become husband and wife, and in pursuance to such an agreement, do live together and co-habit as husband and wife, and hold each other out to the public as husband and wife. Such agreement to become husband and wife may be express or implied; and an `express agreement' is where the conduct of the parties with reference to the subject matter is such as to induce the belief in the minds of the contracting parties that they intend to do that which their acts indicate they have done.

"There can be no lawful agreement, either express or implied, to enter into a common-law marriage so long as either party to said contract has a living and lawful spouse, so in answering the question hereinafter submitted to you concerning the existence, or nonexistence, of an agreement between Oliver Thomas, and Myrtle Kirtman, or Myrtle Kirtman Thomas, for a common-law marriage, you must find the existence of such an agreement, if you do so find from their acts and conduct after the divorce of Roy Smith and Myrtle Kirtman, or Myrtle Kirtman Thomas"

—the case was submitted to a jury on special issues, in answer to which the jury answered to questions pertinent to the issue presented on appeal, as follows:

First, that no common-law marriage existed between Myrtle Kirtman and deceased, Oliver Thomas, after Myrtle was divorced from her husband, Roy Smith; second, that a failure of the insurance company to make a lump-sum settlement with Saul Thomas of compensation due him, if any, on account of the death of Oliver Thomas, would work manifest hardship and injustice to Saul Thomas; third, that Saul Thomas was lawfully married to Georgiana Matthews and he is the father of Oliver Thomas, deceased; and, fourth, that the average weekly wage of Oliver Thomas was $24.

At the request of defendant Myrtle Kirtman, the court submitted the following special issues:

"Did or did not the deceased and Myrtle Kirtman, after the divorce of Roy Smith and Myrtle Kirtman, during the month of October, 1928, enter into an agreement to take each other for husband and wife?" To which inquiry the jury answered, "No."

"What year was Saul Thomas and Georgiana Mathews married?" To which the jury answered, "1901."

"What year was Oliver Thomas born?" To which the jury answered, "1903."

Upon the answers of the jury to the questions submitted and upon the evidence, the court rendered judgment in favor of Saul Thomas against the American Mutual Liability Insurance Company for the sum of $5,184, with interest thereon from the date of judgment at the rate of 5 per cent. per annum, decreeing, however, that one-third of such recovery should be paid to plaintiff's attorneys, Charles E. Fernandez, Henry O'Dell,...