Berger v. Fidelity Union Casualty Co.

• Decision Date: 05 March 1927
• Docket Number: (No. 8911.)
• Parties: BERGER et al. v. FIDELITY UNION CASUALTY CO. et al.
• Court: Texas Court of Appeals

293 S.W. 235

BERGER et al. v. FIDELITY UNION CASUALTY CO. et al.

(No. 8911.)

Court of Civil Appeals of Texas. Galveston.

March 5, 1927.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Action by Mrs. Ida Berger and others against the Fidelity Union Casualty Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Rucks & Enlow, of Angleton, for appellants.

Collins & Houston, of Dallas, for appellees.

LANE, J.

This suit was instituted by Mrs. Ida Berger, the surviving wife of one O. J. Berger, hereinafter referred to, for herself and as next friend of the minor children of her deceased husband and herself, to wit, Leroy, Edwina, Elvira, and Marvin, against the Fidelity Union Casualty Company, hereinafter, for convenience, referred to as the Casualty Company, and the Employers' Indemnity Corporation, hereinafter referred to as the Indemnity Company, to recover the sum of $5,400 upon a certain policy of insurance issued by the Casualty Company to the City Light & Gin Company, a subscriber under the Workmen's Compensation Act of the State of Texas (Vernon's Ann. Civ. St. 1925, arts. 8306-8309), by which it contracted and agreed to promptly pay to any employee of the Light & Gin Company any sum that might become due such employee under the provisions of the Workmen's Compensation Act.

The plaintiff alleged that O. J. Berger was, on the 12th day of September, 1922, an employee of the City Light & Gin Company, a copartnership composed of Lee Farrer and F. Kiber; that on said date O. J. Berger was killed by an explosion while in performance of his duties as such employee, and that at the time of the death of Berger the policy above mentioned was in full force and effect and that the Indemnity Company, by its indorsement on said policy, agreed in writing to pay all losses incurred under the same which might be in excess of the assets of the Casualty Company available for application to the payment of such losses. Plaintiff further alleged that though the policy recites that the City Light & Gin Company is a copartnership composed of O. J. Berger, Lee Farrer, and F. Kiber, such recital is erroneous, in that as a fact O. J. Berger was not at the time of the execution of the policy, nor at the time of his death, a member of said copartnership, and that the recital that Berger was such member was erroneously written into the policy by the Casualty Company through the mutual error and mistake of the parties to the contract. Plaintiff alleged that at the time of his death O. J. Berger was receiving from his employers the sum of $150 per month for his services; that while so employed it was the duty of Berger to manage the operation of the plant, and act as engineer and electrician. She alleged the presentation of the claim of the plaintiff to the Industrial Accident Board and its refusal to allow plaintiff any award, and her notice to the board of her dissatisfaction with such refusal and her intention to, within the time prescribed by law, bring suit to set aside the ruling and decision of the board. She prayed that the ruling and decision of the Accident Board be set aside and that plaintiff be awarded judgment against defendants for the sum of $15 per week for 360 weeks, or the aggregate sum of $5,400, and that should the court hold that the policy contract names O. J. Berger as a member of the copartnership, such contract be so reformed as to eliminate the name of O. J. Berger therefrom, and that as so reformed the same be enforced.

The defendant Fidelity Union Casualty Company answered by general and special demurrers, general denial, and specially pleaded that for more than a year prior to the issuance of the contract sued on, and during the term of the contract up to the date of the death of O. J. Berger, the said Berger had led the defendants to believe by his representations that he was a member of the copartnership firm City Light & Gin Company and that said copartnership consisted of F. Kiber, Lee Farrer, and O. J. Berger, and by reason of said representation made by O. J. Berger, the defendant did not demand nor collect any premiums for risk of injury to the said Berger, as it would have done if Berger had been an employee; that the defendant had no means of knowing the status of Berger was other than he represented himself to be and was induced, to its prejudice, to issue the contract sued on and to leave same in force inuring to the benefit of Berger as an insured employee under the Employers' Liability Act; and that by reason thereof the plaintiffs were estopped from denying that the said O. J. Berger was other than a member of said copartnership City Light & Gin Company.

The cause was tried without a jury, and judgment was rendered for defendants. The plaintiffs have appealed.

Appellants present but two propositions upon which they urge a reversal of the judgment, to wit: (1) That the court erred in rendering judgment for appellees, in that the undisputed evidence shows that O. J. Berger, deceased, was at the time of his death an employee of the City Light & Gin Company, a copartnership composed of Lee Farrer and F. Kiber only, and that O. J. Berger was not a member of said copartnership, and therefore appellants, the surviving wife and children of O. J. Berger, were entitled to judgment against the Casualty Company for compensation by reason of the death of Berger. (2) That the court erred in rendering said judgment, in that, should this court conclude that the evidence was sufficient to sustain the finding of the trial court that Berger was a member of the copartnership of City Light & Gin Company, the undisputed evidence shows that Berger was also an employee of said copartnership whose duties included that of engineer in operating the gas engine at the plant of the company, as well as performing other labor as such employee, in addition to his duties as general manager of the company; and that being so engaged at the date of his death, appellants were entitled to judgment against the appellees who had insured the employees of the City Light & Gin Company.

We have carefully examined the evidence recited in the briefs of both parties and also the evidence disclosed by the statement of facts, and after such examination have reached the conclusion that there is ample evidence to support a finding that O. J. Berger...