Consolidated Underwriters v. Free

• Decision Date: 07 April 1923
• Docket Number: (No. 10146.)
• Citation: 253 S.W. 941
• Parties: CONSOLIDATED UNDERWRITERS v. FREE.
• Court: Texas Court of Appeals

253 S.W. 941

CONSOLIDATED UNDERWRITERS v. FREE.

(No. 10146.)

Court of Civil Appeals of Texas. Fort Worth.

April 7, 1923.

Rehearing Denied May 19, 1923.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Proceeding under the Workmen's Compensation Act by Nancy E. Free for the death of Charles H. Neely, opposed by the Consolidated Underwriters, insurers of Moore & Roeser, the employers. The decision of the Industrial Accident Board refusing compensation was rejected by the claimant, and she brought suit to set aside the decision and to recover compensation. Judgment for claimant, and defendant appeals. Affirmed.

E. C. Gaines, of Austin, for appellant.

Grindstaff & Zellers, of Weatherford, for appellee.

DUNKLIN, J.

Chas. H. Neely was an employé of Moore & Roeser, who owned and operated an oil lease located on a tract of land consisting of 160 acres, situated near the town of Caddo, in Stephens county, Tex. The owners of the lease were engaged in the production and sale of the oil from wells situated thereon. Several houses had been erected by them on the lease, which were occupied by their employés. One of those houses was occupied by R. L. Frady, an employé, and his family, and Chas. H. Neely boarded with the family, occupying one of the rooms in the house. On the night of October 24, 1919, a controversy arose between Neely and Frady, as a result of which Frady, who was in an intoxicated condition, became enraged and struck Neely on the head with an automobile jack, fracturing his skull. From the wound so received, Neely never recovered, and died during the month of February, 1920. After his death and during the summer of 1920, his sister, Mrs. Nancy E. Free, of Henrietta, Okl., filed a claim with the Industrial Accident Board of the state for compensation claimed by reason of the death of Neely, as against the Consolidated Underwriters, insurers, with whom Moore & Roeser had procured a policy of insurance under the Workmen's Compensation Law (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246—91) they being subscribers under the law.

On December 16, 1920, the Industrial Accident Board, after due hearing, rendered its decision refusing Mrs. Free any compensation; the basis of such finding being that the injury sustained by Neely was not received in the course of his employment, and also that Mrs. Free was not a dependent sister of Neely at the date of his death, within the meaning of article 5246—15 of the Workmen's Compensation Law.

On December 29, 1920, Mrs. Free gave notice to the Industrial Accident Board and the insurance company that she would not abide by the decision of the Board, and within 20 days after such notice, to wit, on January 17, 1921, she, joined by her husband, instituted this suit in the district court of Stephens county, to set aside the decision of the Industrial Accident Board and to recover compensation as provided by the Workmen's Compensation Law. Upon the trial of that suit, she recovered judgment for compensation at the rate of $15 per week for a period of 360 weeks, and from that judgment the defendant has appealed.

In plaintiff's original petition, the defendant was designated as the "Consolidated Underwriters, a corporation, duly incorporated, and duly and legally permitted to do business in the state of Texas, with T. H. Mastin, its agent, residing in Beaumont, Jefferson county, Tex." In plaintiff's first amended original petition, upon which the case was tried, the defendant was designated as —

"Consolidated Underwriters, a mutual reciprocal association of Kansas City, Jackson county, Mo., and being duly authorized and having authority and a permit to do business in the state of Texas, represented in this state by T. H. Mastin & Co., its agents, residing in Beaumont, Jefferson county, Tex."

That amended petition was filed September 3, 1921, which was more than 20 days after plaintiff gave notice that she would not abide by the decision of the Industrial Accident Board.

By article 5246—44, of the Workmen's Compensation Law, Complete Texas Statutes, one claiming compensation for injury to an employé, and who appeals from a decision of the Industrial Accident Board, must file suit within 20 days after he has given notice that he does not consent to abide by the decisions of the Board. Defendant invoked that provision of the statute in support of its claim that plaintiff's suit was barred because no suit had been instituted against it until the amended petition was filed. In other words, the plea presented the contention that the suit as originally instituted was against another and different party from that described as the defendant in the amended petition, and appellant's first assignment of error is addressed to the action of the court in overruling that plea.

On March 8, 1921, a pleading was filed designated as the "original answer of the defendant," signed "Jackson & Woods, attorneys for defendant." That pleading contained a general and special exception to "plaintiff's petition," and also a general denial of the allegations therein contained. In each instance the party filing the same was designated as "defendant," without giving its name. It thus appears that that answer was addressed to plaintiff's original petition. On July 21, 1921, and prior to the filing of plaintiff's amended original petition, the following agreement was entered into and filed with the papers of the cause by attorneys for plaintiff and for the Consolidated Underwriters:

"Nancy E. Free et al. v. Consolidated Underwriters. No. 1728-B. In District Court 90 Judicial District, Stephens County, Texas. Now comes plaintiff Nancy E. Free and plaintiff Harry Free by their attorneys of record, Grindstaff & Sellers, and the defendant, Consolidated Underwriters, by its attorneys of record Jackson & Woods and agree that the facts hereinafter set out are true and that the said facts hereinafter set out may be used as evidence by plaintiffs or defendant on the trial of the case and each party hereto agrees and consents that the facts hereinafter set out are true and may be introduced in evidence on the trial of the above numbered and entitled cause without objection from either plaintiffs, or their attorneys of record, said facts being as follows, to wit:

"No. 1. On the 24th day of October 1919, Moore & Roeser was a partnership doing an oil business in Stephens county, Tex. On this day and date the said Moore & Roeser was a subscriber under the Workmen's Compensation Law, Acts of the Regular Session of the Thirty-Fifth Legislature, chapter 103 (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246—91) and had in full force and effect a policy of insurance with defendant herein, condition to pay to employés and their beneficiaries, in case of death, of Moore & Roeser, such compensation as is provided for the Workmen's Compensation Law of Texas.

"No. 2. Moore & Roeser and the Consolidated Underwriters both had immediate notice and were duly notified of the injury and death of Charles H. Neely and that the plaintiffs duly filed claim for compensation within the time required by law on account of death of said Charles H. Neely, with the Industrial Accident Board at Austin, Tex. (No. 3 struck out.)

"No. 4. That on the 16th day of December, 1920, the Industrial Accident Board at Austin, Tex., entered its final ruling and decision on the claim of plaintiffs herein holding that the said plaintiffs were not entitled to compensation for the death of Charles H. Neely; that within 20 days as allowed by the Workmen's Compensation Law of Texas, plaintiffs gave proper notice that they and each of them were not willing and would not abide by the final ruling and decision of said Board; that within 20 days from the date giving said notices plaintiffs filed suit in the district court of Stephens county, Tex., to set aside the final ruling and decisions of the Industrial Accident Board as made and entered on the 16th day of December, A. D. 1920.

"The above facts are agreed to by the attorneys of record for both plaintiffs and defendant, and agreed that the same may be introduced by either party to the above entitled and numbered cause.

"Dated 21st day of July, 1921. Grindstaff & Zellers, Attorneys for Nancy E. Free et al. Jno. W. Woods and W. C. Jackson, Attorneys for Consolidated Underwriters."

There is no showing in the record that the agreement so entered into and the original answers so filed were not intended as the acts of the insurer, who was at all times intended to be sued by plaintiff, or that the same were not authorized by the defendant against whom judgment was finally rendered. In fact, it appears that W. C. Jackson, one of the attorneys who signed the written agreement, was also one of the attorneys who filed the plea presenting the defense of limitation. Under such circumstances, we think it is clearly to be implied that appellant authorized the filing of the original answers and the execution of the written agreement, and that the answers and agreement constituted an entry of appearance by appellant and amounted to a waiver of its right to complain that the suit was not instituted against it by the filing of the original petition, which was filed within 20 days after plaintiff gave notice that she would not abide by the decision of the Industrial Accident Board. McCord-Collins Co. v. Prichard, 37 Tex. Civ. App. 418, 84 S. W. 388, writ of error denied; Weatherford, M. W. & N. W. Ry. Co. v. Crutcher (Tex. Civ. App.) 141 S. W. 137; Grand Lodge A. O. U. W. v. Bollman, 22 Tex. Civ. App. 106, 53 S. W. 829, writ of error denied; Williams v. Abilene Ind. Tel. & Tel. Co. (Tex. Civ. App.) 168 S. W. 402; Anderson v. Zorn (Tex. Civ. App.) 131 S. W. 835; Middlebrook v. Davis-Bradley Mfg. Co. (Tex. Civ. App.) 27 S. W. 169; Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 South. 871, 138 Am. St. Rep. p. 73; 4 Fletcher Cyclopedia Corporations, §§ 30, 80; So. Pac. Co. v. Graham, 12 Tex....