Borel v. United States Casualty Company

• Decision Date: 13 June 1956
• Docket Number: No. 15881.,15881.
• Citation: 233 F.2d 385
• Parties: John P. BOREL, Appellant, v. UNITED STATES CASUALTY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

233 F.2d 385 (1956)

John P. BOREL, Appellant, v. UNITED STATES CASUALTY COMPANY, Appellee.

No. 15881.

United States Court of Appeals Fifth Circuit.

May 15, 1956.

Rehearing Denied June 13, 1956.

W. J. Kronzer, Jr., Frank Abraham, Houston, Tex., Hill, Brown, Kronzer & Abraham, Houston, Tex., of counsel, for appellant.

Charles M. Haden, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a directed verdict for the defendant in an action for workmen's compensation benefits under the Texas Workmen's Compensation Act, Vernon's Rev.Civ.St. Art. 8306 et seq. The plaintiff originally filed a claim for compensation benefits with the Industrial Accident Board of Texas, and was awarded $400 for total disability for sixteen weeks. Thereafter, he filed notice of dissatisfaction with this award, and brought suit in the district court of Harris County, Texas, against his employer's insurance carrier. The defendant removed the case to federal district court, and answered, admitting that the plaintiff was within the scope of employment when the injury occurred. Upon taking the plaintiff's deposition, however, the defendant amended its answer so as to withdraw this admission and deny that the plaintiff was hurt in the course of employment, and the case went to trial principally upon this issue and on the extent of the plaintiff's injury. The trial court, at the conclusion of the plaintiff's case, directed a verdict for the defendant on the ground that there was insufficient evidence to support a finding that the plaintiff was within the scope of employment at the time of the accident. The plaintiff appeals, asserting that either the admission in the superseded answer or the evidence adduced at the trial would support such a finding.

At the trial, the plaintiff testified that he was injured on August 28, 1953, when he was sent by his employer to "flash," or put a sheet metal guard around, a chimney flue at 17 Shadow Lane, Houston. It rained during the morning, so that the plaintiff stayed in the shop until about the noon hour. Then he and his helper, Calvin Hamblin, left in the company truck to construct this guard and another at a nearby address. When they arrived at 17 Shadow Lane, however, two other men were on the roof, and appeared to be already doing the work. They thereupon proceeded to the next job, where they found that the roof had not yet been put on the house under construction, so that it was impossible to work on the chimney there.

They returned to the first address, and the two other workmen having come down from the roof, the plaintiff approached them and said, "We were sent down here to flash a flue." The other sheet metal mechanic, an employee of the Johnson Material Company, answered, "I was sent down here to flash the same flue. I have just about got it flashed." The plaintiff asked him if he needed any help, and the other mechanic replied that he was almost done with the job, but would like some help in getting his truck out of the mud. Hamblin, who was a good driver, got into the truck and tried to back it out himself, but was unsuccessful. The others then found a pine pole about twelve feet long and five inches in diameter, and began helping to get the front wheels out of the mud by placing it under the front bumper and lifting up. At one time during which they were raising up the truck, the plaintiff felt something pop in his back. He was of little help thereafter in freeing the truck, or in working for the rest of that day, and eventually was forced to give up sheet metal work because of extreme pain in his back and legs whenever he bent or lifted. At the trial, expert medical testimony was offered to show that the plaintiff by his exertions in helping to lift the truck suffered a ruptured disc, which will permanently disable him from performing heavy manual labor.

The plaintiff testified that he was not censured by his employer when he reported the cause of his injury. Other testimony was to the effect that sheet metal workers customarily aid each other when working on the same job. There was also evidence that there is a custom in the sheet-metal trade for one employer, when overloaded with work, to subcontract some of it to other employers. However, there was no connection shown here between the plaintiff's employer and the Johnson Material Company, and the record does not disclose why both employers sent workers to the same job.

The plaintiff's first contention is that he was entitled to go to the jury on the strength of the admission by the defendant in its original answer that he was acting within the scope of his employment at the time he was injured. A superseded pleading is of course not a conclusive admission of the statements made therein, and is not properly considered by a fact-finder unless introduced in evidence. Fruco Const. Co. v. McClelland, 8 Cir., 192 F.2d 241; Proctor & Gamble Defense Corp. v. Bean, 5 Cir., 146 F.2d 598.¹ The plaintiff here offered in evidence the part of the original answer making the admission, and the statement could therefore have been considered by the jury in reaching a verdict, along with all the other evidence in the case. Kunglig Jarnvagsstyrelsn v. Dexter & Carpenter, 2 Cir., 32 F.2d 195; Evans v. Daniel, 9 Cir., 289 F. 335. Nevertheless, such an admission can be explained or controverted at the trial by the party filing it. Nisbet v. Van Tuyl, 7 Cir., 224 F.2d 66.

The original answer in ...