Casualty Reciprocal Exchange v. Baloney

• Decision Date: 02 December 1942
• Docket Number: No. 4075.,4075.
• Citation: 167 S.W.2d 209
• Parties: CASUALTY RECIPROCAL EXCHANGE v. BALONEY.
• Court: Texas Court of Appeals

Page 209

167 S.W.2d 209

CASUALTY RECIPROCAL EXCHANGE v. BALONEY.

No. 4075.

Court of Civil Appeals of Texas. Beaumont.

December 2, 1942.

Rehearing Denied December 16, 1942.

Appeal from District Court, Jefferson County; W. S. Nichols, Judge.

Suit under the Workmen's Compensation Act by Jim Baloney to set aside an order of the Industrial Accident Board in favor of the Casualty Reciprocal Exchange. From an adverse judgment the Casualty Reciprocal Exchange appeals.

Affirmed.

Wilder & Ippolito and Victor Ippolito, all of Beaumont, for appellant.

Adams, Hart & Daughtry, of Beaumont, for appellee.

WALKER, Chief Justice.

This is a workman's compensation case, with appellant, Casualty Reciprocal Exchange, the compensation insurance carrier, appellee, Jim Baloney, the employee, and Crystal Ice Company the employer. Appellee alleged that on the 14th of September, 1941, he suffered a total permanent disability while stacking cubes of ice in the course of his employment. On the verdict of the jury finding that issue in his favor, and the other necessary facts, he was awarded judgment for $3,000 to be paid in a lump sum, from which appellant has regularly prosecuted its appeal.

Appellant's first point is that it was entitled to an instructed verdict on the ground that on the undisputed evidence appellee was employed in violation of Art. 705c of Vernon's Annotated Penal Code. On the undisputed evidence, appellee's employer was engaged in the manufacture of ice, and appellee was injured while handling the ice. It was further established that appellee at the time he was injured did not have and had not delivered to his employer the "certificate" required by Sec. 1 of Art. 705c of the Penal Code. On this statement appellant cites the following authorities in support of its proposition for an instructed verdict and for judgment non obstante veredicto. Fort Worth Lloyds v. Roberts, Tex.Civ.App., 154 S.W.2d 882; Texas Employers' Ins. Ass'n v. Tabor, Tex.Com.App., 283 S.W. 779; Montgomery Ward & Co. v. Lusk, Tex.Civ.App., 52 S.W.2d 1110. We do not review appellant's authorities for the reason that the evidence before us does not bring this case within the construction of Art. 705c of the Penal Code invoked by appellant. There was no evidence that appellee's employer ever offered to the public for sale or tendered for public use any of its ice. The record is silent as to the use made of the ice manufactured by appellee's employer. There was no evidence against the conclusion that, as between him and his employer, appellee was employed in good faith and that he continued on his job in good faith, believing that he was a legal employee and entitled to all the benefits of an employee. To defeat his claim on the construction given Art. 705c of the Penal Code by the authorities cited by appellant, the burden certainly rested upon it to show with reasonable certainty that appellee's employment fell within the provisions of Art. 705c. This court will not aid appellant's defense by intendments arising on the evidence and by inferences to be drawn therefrom, as a matter of law, unless compelled to do so by the established principles of our jurisprudence. So, while ...