Dacus v. Md. Cas. Co.

• Decision Date: 28 February 1936
• Docket Number: No. 4095.,4095.
• Citation: 40 N.M. 110,55 P.2d 663
• Parties: DACUS et al.v.MARYLAND CASUALTY CO.
• Court: New Mexico Supreme Court

40 N.M. 110

55 P.2d 663

DACUS et al.

v.MARYLAND CASUALTY CO.

No. 4095.

Supreme Court of New Mexico.

Feb. 28, 1936.

Appeal from District Court, Catron County; Harry P. Owen, Judge.

Action by Lillie Mae Dacus and Charles Clinton Dacus and another, minors, by Lillie Mae Dacus, their guardian and next friend, against the Maryland Casualty Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Attorney, appearing before Texas Industrial Accident Board solely to present his clients' claim, which was allowed, for employee's death, and paid his fee directly, was not impliedly authorized to receive payments of compensation awarded from insurance carrier, but was latter's agent in receiving its checks therefor, so that claimants were not estopped to deny his authority, in their action against such insurer for sums not paid over to them by attorney. Vernon's Ann.Civ.St.Tex. art. 8306 et seq.

Charles H. Fowler, of Socorro, for appellant.

M. C. Mechem and Donald B. Moses, both of Albuquerque, for appellees.

ZINN, Justice.

Appellant, Maryland Casualty Company, a corporation, was the defendant, and the appellees were the plaintiffs, in the trial court. Any reference hereafter to appellee shall be taken to mean appellee Lillie Mae Dacus.

Appellees Lillie Mae Dacus with Charles Clinton Dacus and Ila Dacus, minors, by Lillie Mae Dacus, their guardian and next friend, sued in the district court of Catron county to recover judgment against appellant for certain sums which they alleged had accrued and were unpaid under a workmen's compensation award made to them by the Industrial Accident Board of the state of Texas.

Wm. A. Dacus, husband and father of appellees, died April 4, 1929, while employed by Cosden Oil Company, a corporation, at Big Spring, Tex. He was accidentally killed while engaged in such employment. Appellant was the insurer of Cosden Oil Company and its workmen, and the appellant and Cosden Oil Company were ordered to pay to appellees certain sums of money in monthly installments as compensation.

Appellees' complaint set up three causes of action; the first being for appellee individually and asking judgment for an unpaid portion of the award claimed to be due her in the sum of $560.94; the second being for appellee as guardian for the minors and praying judgment for an unpaid portion of the award claimed to be due her as such guardian in the sum of $610.05; and the third cause being for her personally and as guardian and asking judgment for money due her in such manner and claimed to be unpaid in the sum of $496.52.

The appellant answered, denying the allegations of any sums due and owing from appellant to appellees. Appellant alleged that all the sums accrued and due on the award had been fully paid to appellees before the bringing of the suit, and that appellant's drafts for each monthly installment under the award were delivered and paid to appellees either in person or to their attorney of record promptly as they became due, and that all such drafts were presented for payment and paid.

Appellees replied, denying that appellant paid any sum or sums due them to any attorney representing them. Appellees contended that title 130, Revised Civil Statutes of Texas 1925, and acts amendatory thereto (Vernon's Ann.Civ.St. art. 8306 et seq.), under which the awards were made, provide that all awards of compensation adjudged to be due beneficiaries under said laws shall be paid directly to those entitled to receive them, and that, if appellant paid the awards due appellees to any person or persons representing themselves to be appellees' attorney or agent, such payments do not constitute payment to appellees, and that the awards are still due, owing, and unpaid.

The Texas statute in question is as follows: “Such compensation shall not pass to the estate of the deceased to be administered upon, but shall be paid directly to said beneficiaries when the same are capable of taking, under the laws of this State, or to their guardian or next friend, in case of lunacy, infancy or other disqualifying cause of any beneficiary. The compensation provided for in this law shall be paid weekly to the beneficiaries herein specified, subject to the provisions of this law.” Section 8a, art. 8306.

Also the following: “It is the purpose of this law that the compensation herein provided for shall be paid from week to week and as it accrues and directly to the person entitled thereto, unless the liability is redeemed as in such cases provided elsewhere herein.” Section 18, art. 8306

Appellant then pleaded estoppel by conduct, contending that for approximately two years appellee personally and as guardian stood by and permitted the appellant to send the compensation checks to R. H. Morgan, who was the attorney of record for appellees in all proceedings before the Industrial Accident Board of the state of Texas, and that appellee knew the checks were payable to her, individually or as guardian, and were deliverable to her at her request, and that by reason of her conduct appellee is estopped to deny that Morgan was her attorney and agent with authority to receive the checks for her.

When the Industrial Accident Board of the state of Texas awarded compensation to appellee, it ordered the appellant to pay Morgan a fixed attorney's fee. Morgan received his fees direct from appellant. Appellant, in sending checks to Morgan, was following its usual custom. All of the checks were sent by appellant to R. H. Morgan. No claim is made that checks for all the accrued compensation involved in this suit were not sent by appellant. The trial court found that all such checks were sent to Morgan for delivery to appellees and that they were presented for payment and paid, and that the appellant made the remittances in good faith.

The checks which make up the amounts sued for in this action were indorsed by Morgan with the name of the payee followed by his own name. Appellee testified that she had never received any of the money represented by the checks totaling the amounts claimed by her. About the first of the year, 1931, appellee asked the appellant to send all future checks to her, and the request has been complied with. This action does not involve any checks or amounts accruing on the award after that time.

After trial and argument, the appellant presented requested findings of fact and conclusions of law, some of which were found by the court, some were modified and found as modified, and some were not found or refused.

The court found for the appellees upon the first and second causes of action and for appellant upon the third, and rendered judgment against appellant for the amounts by the court considered established by the evidence on the first two counts, being $546.90 principal and interest on the first and $663.59 principal and interest on the second, and for costs. From this judgment the case is here on appeal.

The issues presented are summarized as follows: First, that the judgment is not supported by any substantial evidence; that there is an entire lack of competent and credible evidence to prove that any part of the money sued for was not...