Mitchell v. Fidelity & Casualty Co. of New York
| Decision Date | 07 March 1942 |
| Docket Number | No. 631.,631. |
| Citation | 43 F. Supp. 900 |
| Court | U.S. District Court — Southern District of Texas |
| Parties | MITCHELL v. FIDELITY & CASUALTY CO. OF NEW YORK. |
Burris & Benton, of Houston, Tex., for plaintiff.
Bryan & Bryan, of Houston, Tex., for defendant.
This is a suit by plaintiff against defendant for compensation under the Texas Workmen's Compensation Law, Articles 8306 to 8309a, Vernon's Annotated Texas Civil Statutes. Plaintiff L. C. Mitchell is the employee, the firm or partnership of Wohlfeld-Dalton-Dellone is the employer, and defendant the Fidelity & Casualty Company of New York is the insurer, underwriting the payment of compensation owing by employer to their employees.
On or about March 6, 1941, employer was a contractor, engaged in building houses at Camp Wallace, near Hitchcock, in Galveston County, in this District. Plaintiff was a carpenter, working on such houses, and was injured by being struck by an automobile while walking away from the house upon which he had been working that day.
The case was tried with a jury, and at the close of plaintiff's evidence, and again at the close of all the evidence, defendant moved for a directed verdict. Decision on the motions was reserved under Rules of Civil Procedure, Rule 50, 28 U.S.C.A. following section 723c. The case was submitted, and the jury answered questions propounded, under Rule 49(a). The rate of compensation was stipulated.
Plaintiff is now moving for judgment on the verdict, and defendant is now pressing its motions for directed verdict, and in the alternative, moving for judgment on the verdict.
1. The first question is whether, under Subdivision 5 of Section One of Article 8309, plaintiff sustained an injury in the course of his employment.
There was evidence that plaintiff, with other employees, was on March 6, 1941, at Camp Wallace, engaged as a carpenter on houses being erected within a large enclosure to which there were two places of ingress and egress. That the employees were identified by a numbered badge issued to them and which they retained during their employment and wore while seeking ingress to and while within the enclosure. That upon arriving each morning, each employee reported to the office of employer near a place of ingress, and being there identified by his badge, received from employer, in addition to the badge, a metal disc (called a "brass"), containing the same number as that of his badge. That with this "brass" and the badge, he was permitted to proceed to the place of work, and to go to work, and when his day's work was over, he was required to return to the office of employer and turn in the "brass". That the "brass" also played an important part in the wage accounting between employer and employee.
There was evidence that when injured, plaintiff was on his way from the house where he had worked that day to the office of employer to turn in his "brass" and to then leave such enclosure.
On the issue of whether plaintiff sustained an injury in the course of his employment, defendant, as stated, moved for a directed verdict, but the Court submitted, and the jury answered, question No. 1,1 finding that plaintiff did sustain an injury in the course of his employment. Defendant did not except to the question as submitted, nor to the charge of the Court, submitting the issue.
I think defendant was not entitled to a directed verdict on the issue, that the issue was properly submitted to the jury, that there is evidence to sustain the finding of the jury thereon, and that the finding should stand. Winder v. Consolidated Underwriters, 5 Cir., 107 F.2d 973; Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63; Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532; Bountiful Brick Co. et al. v. Elizabeth W. Giles et al., 276 U.S. 154, 48 S.Ct. 221, 66 A.L.R. 1402, 72 L.Ed. 507; Texas Employers' Insurance Association v. Anderson et al., Tex.Civ.App., 125 S.W.2d 674; Petroleum Casualty Co. v. Green, Tex.Civ.App., 11 S.W.2d 388; Employers' Liability Assur. Corp. v. Light, Tex.Civ.App., 275 S.W. 685; Insurors Indemnity & Insurance Co. v. Lankford, Tex.Civ.App., 150 S.W.2d 288, 289; Smith v. Texas Employers' Insurance Ass'n, 129 Tex. 573, 105 S.W.2d 192, 193.
2. A quotation from a recent opinion of the Supreme Court of Texas (National Mut. Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089, 1090) seems appropriate as consideration of the next question is approached. I quote (italics mine): etc.
Plaintiff in his complaint alleges total incapacity as a result of "general injuries" and prays for compensation under Section 10 of Article 8306, which is as follows: "While the incapacity for work resulting from the injury is total, the association shall pay the injured employé a weekly compensation equal to sixty per cent of his average weekly wages, but not more than $20.00 nor less than $7.00 and in no case shall the period covered by such compensation be greater than four hundred and one weeks from the date of the injury."
In the alternative, plaintiff alleges incapacity as a result of "special injuries", i. e., the total and permanent loss of the use of his left leg under Section 12 of Article 8306. The applicable portion of Section 12 is as follows (italics mine):
* * * * *
* * * * *
"In the foregoing enumerated cases of permanent, partial incapacity, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member.
* * * * *
Citing Fitzgerald v. Southern Surety Company, Tex.Civ.App., 75 S.W.2d 298, Petroleum Casualty Company v. Seale, Tex.Com.App., 13 S.W.2d 364, and other similar cases, defendant contended at the trial that under Section 12, the issue of the permanent loss of the use of plaintiff's left leg should not be submitted to the jury, but if anything, only the issue of the permanent loss of plaintiff's left leg below the knee. That was done, and the jury found that for a time, plaintiff suffered the loss of the use of his left leg below the knee, but that it was not permanent.2
The issue of total incapacity as a result of "general injuries" was also submitted to the jury, and there was a finding of total incapacity for a period of 208 weeks beginning on the day of the accident (March 6, 1941) and ending March 6, 1945.3 There was a finding that the injury affected parts of his body other than his left leg below the knee,4 and a finding that 95% of such total incapacity was produced by the injury to his left leg below the knee.5
Under these findings, the question is presented of whether judgment should go for plaintiff or defendant, and if for plaintiff, for how much. The applicable Texas cases are numerous, and not always reconcilable. In the case of Lumbermen's Reciprocal Association v. Anders,6 Tex.Civ.App., Beaumont, 292 S.W. 265, 267, the facts and the findings of the jury were quite similar to the facts and findings here. It is there said (italics mine): ...
To continue reading
Request your trial
-
Reeves v. Liberty Mut. Ins. Co.
...5 Cir., 18 F.2d 453; Winder v. Consolidated Underwriters, D.C., 25 F.Supp. 451; affirmed 5 Cir., 107 F.2d 973; Mitchell v. Fidelity & Casualty Co., D.C., 43 F.Supp. 900; Republic Underwriters v. Warf, Tex. Civ.App., 103 S.W.2d The motion must be overruled. ...
-
Associated Indemnity Corp. v. Bush
...that the fact that the employee was not paid for his time while performing the mission was not conclusive. See also Mitchell v. Fidelity & Casualty Co., D.C., 43 F.Supp. 900, affirmed 5 Cir., 134 F.2d 537; Employers Mutual Liability Insurance Co. of Wisconsin v. Konvicka, 5 Cir., 197 F.2d 6......
-
Consolidated Underwriters v. Langley.
...292 S.W. 265, writ refused; Federal Underwriters Exchange v. Simpson, Tex.Civ. App., 137 S.W.2d 132, writ refused; Mitchell v. Fidelity & Casualty Co., D.C., 43 F.Supp. 900; Texas Law Review, Vol. 18, p. 365; 45 Tex.Jur., p. 612, § Petitioner excepted to the submission of Special Issue No. ......
- THE OWEN, 123.