Ocean Accident & Guarantee Corporation v. Pruitt

• Decision Date: 22 March 1933
• Docket Number: No. 1648-6090.,1648-6090.
• Citation: 58 S.W.2d 41
• Parties: OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. PRUITT et al.
• Court: Texas Supreme Court

58 S.W.2d 41

OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, v. PRUITT et al.

No. 1648-6090.

Commission of Appeals of Texas, Section A.

March 22, 1933.

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

Consolidated suit by William Pruitt and others against the Ocean Accident & Guarantee Corporation, Limited, insurance carrier of Marshall Compress Company and of Jefferson Compress Company, employers, to set aside a decision of the State Industrial Board adverse to plaintiffs. A judgment of the district court adverse to plaintiffs was affirmed as to one of the causes of action, and reversed and remanded as to the other cause of action, by the Court of Civil Appeals [40 S.W.(2d) 254], and the insurance carrier brings error.

Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

Bibb & Bibb, of Marshall, for plaintiff in error.

Jones & Jones, of Marshall, for defendants in error.

CRITZ, Judge.

This is an appeal from a consolidated compensation suit. Wm. Pruitt et al. filed two suits in the district court of Marion county, Tex., against Ocean Accident & Guarantee Corporation, Limited, one being numbered 9687, and the other 9716. The two suits were consolidated and tried as one. Also the plaintiffs amended and filed one petition for the two suits as consolidated. The trial court sustained pleas to the jurisdiction filed by the accident corporation and dismissed the consolidated suit. On appeal by Wm. Pruitt et al. to the Court of Civil Appeals that court affirmed this judgment as to matters involved in cause No. 9687, but reversed and remanded such judgment as to matters involved in cause No. 9716, 40 S.W.(2d) 254. The accident corporation brings error.

It appears upon the face of the pleadings in the consolidated case and in both original cases that Frank Pruitt, deceased, was the father of William, Fred, Sam, Zephia, and Esther Pruitt, who are designated above as Wm. Pruitt et al. and will be so designated hereafter.

Wm. Pruitt et al. alleged in both cases and in the consolidated case that while working for Marshall Compress Company, at Marshall in Harrison county, Texas, on August 29, 1928, Frank Pruitt received a heat stroke which rendered him very sick and incapacitated him from labor for a time. It is then alleged that on August 31, 1928, while he was working for Jefferson Compress Company, in Jefferson, Marion county, Tex., Frank Pruitt suffered another heat stroke which rendered him unconscious for a time, and unable to work for several days. It is then alleged that on September 5, 1928, Frank Pruitt returned to work to the Jefferson Compress Company and worked that day. It is alleged that the next day he died. At this point we pause to say that the pleadings in both cases, and in the consolidated case, in legal effect, allege that death resulted from the combined effects of the two heat strokes detailed above. We shall refer to this matter later.

The pleadings disclose that both the above compress companies were independent corporations, one being located at Marshall in Harrison county, Tex., and the other at Jefferson in Marion county, Tex. Frank Pruitt's employment was not joint, but each company paid him for the time he worked for it. The two companies gave him sufficient employment to take up practically his entire time. Both compress companies carried compensation insurance as provided by the laws of this state in the Ocean Accident & Guarantee Corporation, Limited, but the insurance contracts were separate policies and independent of each other.

On September 15, 1928, Wm. Pruitt, for Wm. Pruitt et al., gave notice of the injury and death of Frank Pruitt to the Accident Board, and made claim for compensation based on such death against the above accident corporation. This notice and claim gave the cause of death as heat prostration, the employer as Marshall Compress Company, the county of injury as Harrison county, Tex., the date of injury as August 29, 1928, and the date of death as September 6, 1928. This notice and claim claimed compensation for Wm. Pruitt et al. from the accident corporation on account of the death of Frank Pruitt.

On November 14, 1928, after due notice, the Industrial Accident Board heard and considered the above claim, and in all things refused the same, and fully and finally acquitted and discharged the accident corporation from all liability on account of such claim. No notice of dissatisfaction with this order was filed with the board, nor was any appeal taken therefrom within the time and in the manner required by law.

It is shown that after the entry of the above order and the failure to give notice of dissatisfaction therewith or to appeal therefrom, these claimants made repeated efforts to have the board reopen the above award. These efforts extended over several months, as is fully shown by the opinion of the Court of Civil Appeals.

On February 28, 1929, and again on March 26, 1929, the board made orders overruling motions theretofore filed by Wm. Pruitt et al. to reopen its original order or award of November 14, 1928, supra. Notice of dissatisfaction with each of these orders was given in due time, and on March 30, 1929, Wm. Pruitt et al. filed suit No. 9687 in the district court of Marion county, Tex. This is one of the consolidated suits.

On March 28, 1929, just two days before the filing of cause No. 9687, supra, Wm. Pruitt et al., through their attorneys, wrote a letter to the board headed "Frank Pruitt Deceased v. Marshall Compress Co." This letter acknowledged the receipt of a letter from the board of March 27, 1929, declining to review its order of November 14, 1928, supra, and declining to make a further award in this case. The letter then informed the board that, "There is a phase of this matter that seems to have been overlooked by your Board." The letter then reads as follows:

"That on or about January 22nd, 1929, and within six months after the death of Frank Pruitt, notice was given in the affidavits then filed, that Frank Pruitt was an employee of the Jefferson Compress Company, and probably received all his injuries as such employee at Jefferson, Marion County, Texas, but certainly received a part of them there. The Ocean Accident & Guarantee Corporation carried the insurance on the Jefferson Compress Company, as well as on the Marshall Compress Company.

"None of the orders which the Board has made, take any cognizance of the fact that Frank Pruitt, was working for the Jefferson Compress Company when injured; and notwithstanding two of those orders have been made since the notice referred to in the affidavits, that he was an employee of the Jefferson Company when killed, was brought to the attention of this Board.

"As we view the matter, neither of the orders dispose of that claim, and therefore, we hand you a formal motion asking that you dispose of the claim against the Jefferson Compress Company, and the Ocean Accident & Guarantee Corporation so that if our client, Ester Pruitt shall be dissatisfied with same, that she may appeal therefrom.

"We trust that you will make an order covering this matter, and send to us a copy thereof."

On the same day as date of the above letter the following instrument was filed with the board by the claimants:

"Before the Industrial Accident Board, Austin, Texas.

"Frank Pruitt (Deceased), Employee, vs. Marshall Compress Company, Employer.

"The Ocean Accident and Guarantee Corporation, Insurers.

"Now comes William Pruitt, guardian of the estate of Ester Pruitt, a minor, and shows that heretofore towit, on the 6th day of September, 1928, Frank Pruitt died as a result of injuries he received while in the employ of the Jefferson Compress Company at Jefferson, Marion County, Texas, and when the Ocean Accident & Guarantee Corporation Ltd., carried the Workmen's Compensation Law, which was then in force and covered the employees of the Jefferson Compress Company. That thereafter, on the 22nd day of January, 1929, the said Ester Pruitt acting through her guardian in affidavits filed in this claim, pending as a claim against the Ocean Accident & Guarantee Corporation Ltd., covering insurance on the employees of the Marshall Compress Company at Marshall, Texas, brought to the notice of this Board through affidavits of Lula Barber, Jim Jackson, R. H. Wood, Doctor Felix Peebles and Jack Buchanan filed therein, that the said Frank Pruitt was an employee of the Jefferson Compress Company at the time he received the injuries that caused his death.

"The said Ester Pruitt through her guardian for herself, and for the benefit of the other beneficiaries, Zepha Pruitt, Sam Pruitt, Fred Pruitt, and William Pruitt, here presents this motion and asks that the Board dispose of said claim against the Jefferson Compress Company, and the Ocean Accident & Guarantee Corporation, growing out of the death of her father, Frank Pruitt, by an appropriate award to be entered by this Board.

"Wherefore, plaintiff prays for consideration and disposition of said claim, which said claim was brought to the attention of this Board by the said Affidavits within six (6) months after the death of the said Frank Pruitt."

Due notice was given of the filing of the above instrument, and on April 25, 1929, the board entered the following order:

"Frank Pruitt (Dec'd), Employee, vs. Marshall Compress Company, and/or Jefferson Compress Company, Employer. N-23908

"Ocean Accident and Guarantee Corporation, Limited, Insurer.

"On this 25th day of April, A. D. 1929, after due notice to all parties at interest, came on to be considered by the Industrial Accident Board application to review order made and entered herein under date of November 14th, 1928, and the Board now finds and orders as follows:

"That the said Fred Pruitte, Sam Pruitte, Zepha Pruitte and Ester Pruitte have failed to establish to the satisfaction of the Board that fraud was practiced in the procurement of said award or that a...