Federal Underwriters Exchange v. Craighead, 14475.

• Court: Court of Appeals of Texas
• Writing for the Court: McDonald
• Citation: 168 S.W.2d 699
• Parties: FEDERAL UNDERWRITERS EXCHANGE v. CRAIGHEAD.
• Docket Number: No. 14475.,14475.
• Decision Date: 29 January 1943

168 S.W.2d 699 FEDERAL UNDERWRITERS EXCHANGE
v.
CRAIGHEAD. No. 14475. Court of Civil Appeals of Texas. Fort Worth. January 29, 1943. Rehearing Denied February 26, 1943.

Appeal from District Court, Wichita County; Ernest Robertson, Judge.

Action by R. J. Craighead, employee, against the Federal Underwriters Exchange, insurance carrier to set aside an award of the Industrial Accident Board under the Workmen's Compensation Act. Judgment awarding plaintiff compensation for total permanent disability, and defendant appeals and moves to present additional evidence.

Judgment affirmed, and motion denied.

Lightfoot, Robertson & Gano, of Fort Worth, for appellant.

Grindstaff, Zellers & Hutcheson, of Weatherford, for appellee.

McDONALD, Chief Justice.

This is a workmen's compensation case. The trial court rendered judgment in favor of the plaintiff, upon a verdict of the jury, for total and permanent compensation, payable in a lump sum. The insurance carrier has appealed, asserting three points of error.

Under its first point of error, the insurance carrier urges that the trial court should have instructed a verdict in its favor, upon the ground that the employee was performing labor on Sunday when he was injured, and that his contract of employment was therefore null and void.

Appellant's pleadings in no way whatever raise the issue of Sunday employment. What we said in Reid v. Associated Employers

Page 700

Lloyds, Tex.Civ.App., 164 S.W.2d 584, 586, writ of error refused, in construing Rule No. 94, Texas Rules of Civil Procedure, is applicable here: "If there existed in the transaction some character of illegality which would constitute a defense to the suit, the burden was upon the defendant to plead and prove it, unless it was such as would necessarily appear from plaintiff's presentation of his case."

The evidence here is that plaintiff was employed during the day of Saturday, November 29, 1941, to work as a helper on a truck which was used to haul oil field equipment. He was injured on Sunday, the day following, while helping to move a drilling rig. His testimony is that he was employed to work "7 days a week, if necessary, but never to work more than 40 hours a week". The insurance carrier made no request to submit any issue to the jury relating to this defense. Its only complaint here is that an instructed verdict should have been ordered. The evidence before us does not show as a matter of law that the work was not one of necessity, or that the employment contract was illegal. Without repeating what is said in them, we refer to the following decisions for support of our views. Texas Employers' Insurance Ass'n v. Tabor, Tex.Com.App., 283 S.W. 779; Maryland Casualty Co. v. Marshall, Tex.Civ.App., 14 S.W.2d 337, writ of error dismissed; Maryland Casualty Co. v. Garrett, Tex.Civ.App., 18 S.W.2d 1102, writ of error dismissed; Casualty Reciprocal Exchange v. Stephens, Tex.Com.App., 45 S.W.2d 143; Texas Employers' Ins. Ass'n v. Henson, Tex.Civ.App., 31 S.W.2d 669, holding on Sunday issue approved by Commission of Appeals in 48 S.W.2d 970, and in 52 S.W.2d 247; Daniels v. Southern Surety Co., Tex.Civ.App., 40 S.W.2d 209, writ of error refused; Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, writ of error refused; United Employers Casualty Co. v. Curry, Tex. Civ.App., 152 S.W.2d 862; Federal Underwriters Exchange v. Bickham, Tex.Civ. App., 136 S.W.2d 880, affirmed by Supreme Court in 138 Tex. 128, 157 S.W.2d 356; Federal Underwriters Exchange v. Coker, Tex.Civ.App., 116 S.W.2d 922, writ of error dismissed.

Under its second point appellant charges error in entering judgment for a lump sum on the ground that there is neither pleading nor evidence to authorize such.

Plaintiff's pleadings relating to lump sum are as follows: "Plaintiff further alleges that the defendant has paid to the plaintiff compensation for a period of seven weeks, but has refused to pay him any additional compensation as hereinbefore set out, and that by reason thereof he has been...