Federal Underwriters Exchange v. Bullard

• Decision Date: 07 April 1939
• Docket Number: No. 13894.,13894.
• Citation: 128 S.W.2d 126
• Parties: FEDERAL UNDERWRITERS EXCHANGE v. BULLARD et al.
• Court: Texas Court of Appeals

128 S.W.2d 126

FEDERAL UNDERWRITERS EXCHANGE v. BULLARD et al.

No. 13894.

Court of Civil Appeals of Texas. Fort Worth.

April 7, 1939.

Rehearing Denied May 19, 1939.

COPYRIGHT MATERIAL OMITTED

Error from District Court, Gregg County; Clarence E. McGaw, Judge.

Suit by the Federal Underwriters Exchange against G. M. Bullard and others to set aside an award of compensation by the Industrial Accident Board for the death of W. W. Bullard, employee, wherein G. M. Bullard and others tendered issues as cross-plaintiffs. To review a judgment in favor of G. M. Bullard and others for compensation, the plaintiff brings error.

Reversed and remanded for new trial.

Benbow, Saunders & Holliday, Claude Williams, and Henry D. Akin, all of Dallas, for plaintiff in error.

Johnson & Oliphant, of Dallas, for defendants in error.

DUNKLIN, Chief Justice.

The Federal Underwriters Exchange has prosecuted this appeal by writ of error from a judgment rendered in favor of G. M. Bullard and others, for compensation, by reason of the death of W. W. Bullard, resulting from an injury sustained by him as an employee of the Rajo Oil Corporation, who carried insurance for the benefit of its employees with the Federal Underwriters Exchange, under the terms of the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq.

The claim for compensation was first filed with the Industrial Accident Board, and reached the District Court of Gregg County on appeal by the Federal Underwriters Exchange, in due and proper form.

In that court issues were duly tendered by the insurer, as plaintiff, and by the beneficiaries, as cross plaintiffs, in proper form, and the judgment from which this appeal is prosecuted was rendered upon the issues so tendered.

For convenience, we will designate in this opinion the beneficiaries as plaintiffs, since they were the ones seeking compensation, and the insurer as defendant, who was resisting the recovery.

The record shows that W. W. Bullard, while working as an employee of the Rajo Oil Corporation, and performing the duties of his employment, was injured when struck by an elevator, which fell on him, and from the injuries so received he died about two days later. He was a single man, and his parents, G. M. Bullard and Mrs. Gertrude M. Bullard, survived him. The Gregg Memorial Hospital and several other persons filed cross actions in the suit in the nature of interventions, for nurse hire, medical and hospital services, rendered the deceased after he received his fatal injury. The judgment rendered was in favor of the parents, and those intervening parties, in certain proportions.

The trial was before a jury on special issues submitted. Preliminary to the submission of the issues, the court gave correct definitions of the terms "injury," "employee" and "injury sustained in the course of his employment," together with these definitions:

"By a `preponderance of the evidence,' as used in this charge, is meant the greater weight and degree of the credible testimony before you."

"The phrase `substantially the whole of the year' whenever used in this charge, shall be construed to mean 300 days or close to or near to 300 days."

Following are the special issues submitted, with the findings of the jury thereon:

"Special Issue No. 1: Do you find from a preponderance of the evidence that W. W. Bullard sustained personal injuries on or about the 29th day of April, 1937, in Gregg County, Texas? Answer `yes' or `no'. Answer: Yes.

"If you have answered special issue No. 1 `yes', then answer the following issue, otherwise do not answer same.

"Special Issue No. 2: Do you find from a preponderance of the evidence that such injuries, if any, sustained by W. W. Bullard were sustained by him when he was an employee of the Rajo Oil Corporation? Answer `yes' or `no'. Answer: Yes.

"If you have answered Special Issues Nos. 1 and 2 `yes', then answer the following issue, otherwise do not answer same.

"Special Issue No. 3: Do you find from a preponderance of the evidence that such injuries, if any, sustained by W. W. Bullard, on or about April 29th, 1937, were received by him in the course of his employment with the Rajo Oil Corporation? Answer `yes' or `no'. Answer: Yes.

"Special Issue No. 4: Do you find from a preponderance of the evidence that on April 29th, 1937, the cross defendant, Federal Underwriters Exchange, was the insurer of the Rajo Oil Corp. and its employees under the provisions of the Workmen's Compensation Law? Answer `yes' or `no'. Answer: Yes.

"If you have answered Special Issue No. 1 `yes', then answer the following issue, otherwise do not answer same.

"Special Issue No. 5: Do you find from a preponderance of the evidence that such injuries, if any, sustained by W. W. Bullard, resulted in his death, on or about May 2nd, 1937? Answer `yes' or `no'. Answer: Yes.

"Special Issue No. 6: Do you find from a preponderance of the evidence that the payment of compensation to the cross plaintiffs, G. M. Bullard and wife, in weekly installments instead of a lump sum (if compensation is due to be paid to the cross plaintiffs) will result in manifest hardship and injustice to the cross plaintiffs? Answer `yes' or `no'. Answer: Yes.

"Special Issue No. 7: Do you find from a preponderance of the evidence that W. W. Bullard performed the same or similar work in the same or neighboring place as that which he was performing on the date of his injuries, if any, on or about the 29th day of April, 1937, during substantially the whole of the year next preceding the said April 29th, 1937, whether for the same employer or not? Answer `yes' or `no'. Answer: Yes.

"If you have answered Special Issue No. 7 `yes' and in that event only, then answer the following issue, otherwise do not answer the same.

"Special Issue No. 8: What do you find from a preponderance of the evidence was the average daily wage of W. W. Bullard during substantially the whole of the year immediately preceding the date of his injuries, if any? Answer in Dollars and Cents, if any. Answer: Six Dollars per day.

"If you have answered Special Issue No. 7 `no' and in that event only, then answer the following issue, otherwise do not answer the same.

"Special Issue No. 9: Do you find from a preponderance of the evidence that during substantially the whole of the year just preceding April 29th, 1937, that there was any employee of W. W. Bullard's class and occupation who performed the same or similar work in the same or neighboring place whether for the same employer or not, to that which said W. W. Bullard was performing, if any, on April 29th, 1937? Answer `yes' or `no'. Answer: (No answer).

"If you have answered the above special issue `yes' and in that event only, then answer the following issue, otherwise do not answer the same.

"Special Issue No. 10: What do you find from a preponderance of the evidence was the average daily wage of such an employee as W. W. Bullard's class in such employment during the days while so employed during the year immediately preceding April 29th, 1937? Answer in Dollars and Cents, if any. Answer: (No answer)."

The judgment rendered by the trial court sets out the verdict, followed by these conclusions:

"And the court now having under consideration on this the 18th day of February, 1938, Cross Plaintiffs' Motion for Judgment on the said verdict and the matters established by the undisputed evidence, and the court being of the opinion that the award of the Industrial Accident Board should be set aside and that Cross Plaintiffs, G. M. Bullard and his wife, Gertrude M. Bullard, are entitled to recover $20.00 per week for the definite period of 40 weeks, representing compensation accrued from the date of the death of W. W. Bullard to the present date, amounting to the sum of $800.00, with interest on the said installments of 6 per cent per annum as they accrued, said interest aggregating $18.40 and the sum of the accrued installments, with interest, amounting to $818.40, and, in addition thereto, the present lump sum value of 320 installments of unaccrued compensation at the rate of $20.00 per week, amounting, after applying the discount provided by law, to the sum of $5,375.22, the total of the accrued compensation installments, with interest thereon, and the present value of the unaccrued installments being the sum of $6,193.62, and the court being of the further opinion that Cross Plaintiffs' contract with their attorneys for a fee in the amount of 1/3 of their recovery herein is lawful and should be approved, and that the said compensation of $6,193.62 should be apportioned two-thirds to the Cross Plaintiffs in their own rights, and one-third for the use and benefit of their attorneys."

With findings in favor of cross plaintiffs for hospital bills, doctor bills and nurses, in stated amounts. Then follow these provisions:

"It is further ordered, adjudged and decreed that the Cross Plaintiffs, G. M. Bullard and his wife, Gertrude M. Bullard, do have and recover of and from the defendant, Federal Underwriters Exchange, the sum of $6,193.62, with interest, at the rate of 6 per cent per annum from the date hereof, apportioned $2,064.54, with interest, to G. M. Bullard, to himself and in his own right, and $2,064.54, with interest, to Gertrude M. Bullard, to herself and in her own right, and $2,064.54, with interest, for the use and benefit of W. E. Johnson and W. L. Oliphant, composing the firm of Johnson & Oliphant, their attorneys of record, for which they may have their separate execution."

Also judgment in favor of other cross plaintiffs in accordance with findings in their favor.

Before presentation of evidence in their behalf, counsel for G. M. Bullard and his wife read to the jury certain allegations in their pleadings that the insurer had appealed to the District Court from the action of the Industrial Accident Board, on their claim for compensation.

After these pleadings were read, counsel for the insurer...