Associated Indemnity Corporation v. Baker

• Decision Date: 01 October 1934
• Docket Number: No. 4289.,4289.
• Citation: 76 S.W.2d 153
• Parties: ASSOCIATED INDEMNITY CORPORATION v. BAKER et al.
• Court: Texas Court of Appeals

76 S.W.2d 153

ASSOCIATED INDEMNITY CORPORATION v. BAKER et al.

No. 4289.

Court of Civil Appeals of Texas. Amarillo.

October 1, 1934.

Rehearing Denied November 19, 1934.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Carson County; E. J. Pickens, Judge.

Suit by Mrs. Annie Baker and others against the Associated Indemnity Corporation to set aside an award of the Industrial Accident Board refusing compensation to claimants for death of J. P. Baker, deceased, resulting from injuries received while employed by the Panhandle Power & Light Company. From a judgment for claimants, defendant appeals.

Affirmed in part, and reversed in part and rendered.

Wil R. Saunders, of Amarillo (E. F. Ritchey, of Miami, of counsel), for appellant.

Underwood, Johnson, Dooley & Huff, of Amarillo, and Frank R. Murray, of Panhandle, for appellees.

HALL, Chief Justice.

This is a workmen's compensation suit which was originally filed in Wheeler county and by agreement of counsel the venue was changed to Carson county.

The substance of the plaintiffs' allegations is: That on or about March 22, 1932, J. P. Baker, the husband of appellee Mrs. Annie Baker, and father of their children Agatha, Ann, William, Pauline, and Carl, who were all dependents of said J. P. Baker, were the only parties entitled to recover under the act (Vernon's Ann. Civ. St. arts. 8306-8309). That on said last-named date and prior thereto, J. P. Baker was an employee of the Panhandle Power & Light Company, a corporation. That on said date, near Mobeetie, in Wheeler county, while in the course of his employment as oiler and general utility man and while engaged with other workmen in cleaning and blowing out the tubes of a steam condenser at its power plant, the said Baker, with his coemployees, were engaged in removing the covering from the condenser and blow-out by means of compressed air, he was injured as a result of having scale, shale, or sediment which had formed in the condenser blown into his face. That the tubes of the condenser were made of copper, brass, or some other alloy. That sulphuric acid and other chemicals were mixed with water before the same were passed through the condenser, and that when such mixture was forced through the condenser, poisonous gas and fumes were formed. That the said Baker breathed and inhaled such gas and fumes through his nose and mouth and absorbed them through the pores of his skin and, as a result thereof, he became violently and seriously ill to the extent that huge blisters and sores appeared around his mouth and nostrils and he was burned so that his skin peeled off of his hands and face and the poison fumes and gases attacked the membranes, tissues, and fibers of his mouth and throat, rendering them sore and raw. That he became weak and was forced to quit work and confined to his bed for several days. That thereafter he returned to work and the performance of his regular duties as an employee, and suddenly died on April 7, 1932. That his death was caused by the inhalation and absorption of such poisonous gases.

The petition contains the other necessary allegation and no question is made as to its sufficiency.

The appellant corporation answered, pleading first to the jurisdiction of the district court, alleging that while the accident board had jurisdiction of this cause, it made and entered a final ruling and decision on October 14, 1932. That on October 20th it made and entered another final ruling, and thereafter on November 17th entered still a third final ruling and decision. That all of said rulings were final in their nature, from which either party had the right of appeal to a court of competent jurisdiction. That the only notice of appeal was given by the appellees to said board on November 28, 1932, which did not designate the decision or award from which the appeal was to be prosecuted.

The court overruled the plea to the jurisdiction, and the appellant answered further by general demurrer, special exceptions, and general denial and set up the facts previously pleaded in its plea to the jurisdiction in bar of the appellees' right to recover. It denied that his death resulted from any injuries received on March 22, 1932, and alleged that his death was caused solely by angina pectoris or chronic myocarditis, neither of which diseases were in anywise connected with or grew out of his employment with the Panhandle Power & Light Company. In the alternative it alleged that Baker died as the result of having inhaled poisonous gases or fumes, that such gases or fumes were incidental to his employment and his death was due to industrial or occupational disease and not to an accidental injury.

The case was tried to a jury, the special issues were answered in favor of appellees, and the court entered judgment against the appellant corporation awarding compensation at the rate of $18.57 per week for a period of 360 weeks, and further decreed that the same be paid in a lump sum, together with interest, and that one-third of the recovery be paid to appellees' attorneys.

The first contention to be considered is that there is no testimony showing that the appellant corporation had ever issued a policy of insurance which covered the employment of Baker.

The propositions urging this point are not supported by the record.

Several letters written by Howerton, secretary of the board, and Earle Adams, its chairman, were introduced in evidence, in which the Associated Indemnity Corporation was plainly named as insurance carrier. A motion filed by the appellant company to have the first award reviewed, together with notice that the employer had become a subscriber with the appellant company, also appear in the statement of facts.

M. J. Moberly, an insurance adjuster, testified that after the accident and after claim had been made by Mrs. Baker against the Associated Indemnity Corporation, he went to Wheeler county and made an investigation of the case in behalf of the corporation. He testified at great length as to the extent of his investigation and, on cross-examination, he stated that he commenced the investigation in behalf of the company in July.

It was said in Barron v. Texas Employers' Insurance Association (Tex. Com. App.) 36 S.W.(2d) 464, that very slight evidence would be held to be sufficient to establish the fact that the defendant had issued a policy of insurance, since it was in a position to show conclusively by its records whether such policy had in fact been issued. That its failure to offer evidence upon the issue might be considered as strongly corroborative of the fact that such policy had been issued.

Article 8307, § 5 (Rev. St. 1925), as amended by the 42d Legislature (1931), c. 224, § 1 (Vernon's Ann. Civ. St. art. 8307, § 5), provides that the Industrial Accident Board shall furnish any interested party with a certified copy of the notice that the employer has become a subscriber and further provides that such certified copy shall be admissible in evidence upon the trial and shall be prima facie proof of all facts stated in such notice in the trial of said case "unless same is denied under oath by the opposing party therein." The appellees insist that because there was no denial under oath that appellant had issued the policy, there is a presumption that it had been issued by appellant. There was no sworn pleading and it is possible that this contention is correct. However, under the rule that the court or jury may infer the existence of one fact from the proof of another related fact, we think the evidence is sufficient to establish that the defendant had issued a policy. There is no controverting testimony of any kind upon this question and the rule is established that it is the duty of the trial court to assume the existence of undisputed facts when framing his charge or special issues. Speer's Law of Special Issues, § 195.

Because the statement in the notice that the Panhandle Power & Light Company had become a subscriber under a policy issued by the Associated Indemnity Corporation is not contradicted anywhere in the record, the court could assume that fact and it was not necessary for an issue to be submitted or to have the jury find relative thereto. We overrule these contentions. Garrett v. State (Tex. Civ. App.) 51 S.W.(2d) 822; Sanitary Appliance Co. v. French (Tex. Civ. App.) 58 S.W. (2d) 159; Citizens' National Bank v. Adams (Tex. Civ. App.) 67 S.W.(2d) 421.

The court submitted to the jury the following issue:

"Do you find from the preponderance of the evidence that the deceased J. P. Baker sustained any personal injuries on or about the 22nd day of March, 1932?"

This is followed by definitions of injury and personal injury.

The appellant excepted upon the ground that there was neither pleading nor evidence to support the submission of such issue and requested the following special issue:

"Do you find from the preponderance of the evidence that J. P. Baker sustained personal injuries as alleged in plaintiffs' petition on or about March 22, 1932?"

The rule has been frequently stated that special issues in cases of this character should refer only to the injuries set out in the plaintiff's petition. While the court erred in submitting the issue in its general form, the error is harmless. The appellant denied that the death of Baker resulted from inhaling and absorbing poisonous fumes and gases on March 22d and alleged that his death was caused (a) by an occupational or industrial disease; (b) by angina pectoris; or (c) chronic myocarditis.

There is no testimony in the record that would authorize the court to submit the issue of occupational or industrial diseases as the cause of Baker's death. The court did submit in separate issues whether Baker died as the result of angina pectoris or of chronic myocarditis. The jury answered both issues in the negative. It thus appears that the special defenses which had any evidence to support them were properly submitted to...