Commercial Standard Ins. Co. v. De Hart

• Decision Date: 03 March 1932
• Docket Number: No. 1158.,1158.
• Citation: 47 S.W.2d 898
• Parties: COMMERCIAL STANDARD INS. CO. v. DE HART.
• Court: Texas Court of Appeals

Page 898

47 S.W.2d 898

COMMERCIAL STANDARD INS. CO. v. DE HART.

No. 1158.

Court of Civil Appeals of Texas. Waco.

March 3, 1932.

Rehearing Denied April 7, 1932.

Appeal from District Court, Brazos County; W. C. Davis, Judge.

Suit by Tom De Hart against the Commercial Standard Insurance Company, insurer, to set aside an award of the Industrial Accident Board for partial disability and to recover lump-sum judgment for personal injuries sustained while in the employ of the Bryan Amusement Company. From judgment for plaintiff, insurer appeals.

Affirmed.

Touchstone, Wight, Gormley & Price, of Dallas, for appellant.

Armstrong & Armstrong, of Bryan, for appellee.

GALLAGHER, C. J.

This suit was instituted by appellee, Tom De Hart, in the district court against appellant, Commercial Standard Insurance Company, to set aside an order of the Industrial Accident Board awarding him compensation for partial disability resulting from personal injuries sustained while employed by the Bryan Amusement Company, and to recover compensation payable in a lump sum for total disability which he alleged resulted from such injuries. Appellant was the insurance carrier of said company. The case was submitted on special issues, in response to which the jury found that appellee was totally disabled as the result of a fall; that the injuries sustained in such fall would be permanent; and that manifest hardship and injustice would result to appellee unless compensation was paid in a lump sum. Appellant having theretofore paid appellee forty-five weekly installments of $20 each, amounting in the aggregate to $900, and having further agreed that unmatured installments should be discounted at the rate of 6 per cent. per annum, the court rendered judgment against it in favor of appellee for the sum of $6,092.00, with interest from the date thereof at the rate of 6 per cent. per annum.

Opinion.

Appellant presents an assignment of error in which it complains of the refusal of the trial court to instruct the jury peremptorily to return a general verdict in its favor. The specific contention urged under said assignment is that appellee, at the time he received his injuries, was not employed in the usual course of the business or occupation of his employer. The Bryan Amusement Company, hereinafter called the company, the corporation by which appellee was employed at the time of his injuries, owned and shortly prior thereto had operated three picture shows. The company decided to suspend the operation of one of said shows and remodel the building in which it was operated. The work done was extensive, costing approximately $25,000 and continuing for a period of three months or more. The company employed the architect, the foreman, and the laborers who did the work. Carpenters, bricklayers, painters, electricians, and common laborers were employed during the course of the work. The company applied to appellant's local agents for a workmen's compensation policy to cover such work. It held at the time a policy issued by appellant covering the operation of its picture shows. This policy was a continuous one. Whether appellant undertook to cover the company's remodeling operations by a new policy, or under the old policy by indorsement thereon or otherwise, is not shown. The company left all its insurance policies with appellant's agents, one of whom held a large incumbrance on its properties. When the company called for its compensation policy or policies, none could be found, but appellant admitted at the trial that such company had a statutory standard compensation policy in force at the time appellee was injured. The company's president testified that appellant's agent or representative, at or shortly after the beginning of the work of remodeling, and before appellee sustained his injuries, came to the building while the work was in actual progress, checked the labor employed, and prepared a pay-roll report, which he signed. Said report was introduced in evidence and showed in addition to a large sum paid to employees engaged in operating its shows, also certain sums paid to employees engaged in carpentry and masonry. The premium rate on the sums so paid was also specified and the gross premium for each stated therein. Said witness further testified that the premiums so charged were promptly paid to appellant. Shortly thereafter appellee, who was employed at the time as a carpenter in the work of remodeling, sustained severe personal injuries in the course of such employment.

"Employee," as that term is used in the Workmen's Compensation Act, is defined therein as follows: "`Employee' shall mean every person in the service of another under any contract of hire, express or implied, oral or written * * * except one whose employment is not in the usual course of the trade, business, profession or occupation of his employer." Rev. St. 1925, art. 8309, § 1. There is nothing in the whole act which can be reasonably construed to limit the right of any person or corporation to engage in any trade, business, profession, or occupation embraced within the terms of the act and by complying with its provisions, secure the benefits thereof, regardless of whether such person or corporation is at the time engaged in some other trade, business, profession, or occupation or not. Neither is there anything in such act which can be reasonably construed to restrict such benefits to such persons or corporations as have an established trade, business, profession, or occupation at the time the protection of such act is invoked. The fact that the Bryan Amusement Company, appellee's employer, had theretofore been engaged in operating picture shows and continued to operate a part of such shows, and had theretofore carried and continued to carry for its protection compensation insurance covering such business or occupation, was no bar to its engaging in the business or occupation of remodeling one of its buildings and availing itself of the protection of the act while so engaged. This is what the amusement company did. It applied to appellant for such insurance. The work being done was inspected by appellant's agents, its character determined, the kind of labor and the amount paid therefor listed, and the premiums for carrying such risks calculated. The amusement company paid such premiums to appellant. Under such circumstances, we think it wholly immaterial whether appellant's agents issued a new policy, or attached an indorsement or rider to its old policy extending its protection to said company while so engaged, or whether it did either. It was its duty under the facts stated, in some proper and effective way, to preserve said company's rights as a holder of compensation insurance covering the work of remodeling said building. The obligations assumed by appellant in the premises were contractual in their nature and inured not only to the benefit of the amusement company, but also to the benefit of appellee as its employee engaged in such work of remodeling. Southern Casualty Co. v. Morgan (Tex. Com. App.) 12 S.W.(2d) 200, 201, pars. 1 and 2. While appellee was so engaged he was employed in the usual course of the amusement company's business or occupation of remodeling such building, and was its employee within the definition of that term contained in said act.

This holding is not in conflict with the holding of the Commission of Appeals in Oilmen's Reciprocal Ass'n v. Gilleland, 291 S. W. 197, nor with the holding of this court in Texas Employers' Insurance Ass'n v. Sewell, 32 S.W.(2d) 262. In neither of said cases was the policy issued by the insurance carrier introduced in evidence. In the Gilleland Case the statement of facts merely recited that the City Laundry Company held a policy issued by said association insuring and indemnifying it against liability for injuries to its employees arising in the course of their employment. The employee for whose death compensation was sought was not, when he received the fatal injuries, engaged in any task usually incident to the business or occupation of operating a laundry. He was engaged as a brick mason in the construction of a new pumping plant, to be used on completion for increasing the facilities...