Fort Worth Lloyds v. Roberts

• Decision Date: 19 September 1941
• Docket Number: No. 14271.,14271.
• Citation: 154 S.W.2d 882
• Parties: FORT WORTH LLOYDS v. ROBERTS et al.
• Court: Texas Court of Appeals

154 S.W.2d 882

FORT WORTH LLOYDS v. ROBERTS et al.

No. 14271.

Court of Civil Appeals of Texas. Fort Worth.

September 19, 1941.

Rehearing Denied October 24, 1941.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Suit under the Workmen's Compensation Act by Fort Worth Lloyds, compensation insurance carrier, to set aside an award of the Industrial Accident Board in favor of Katie Roberts and others, beneficiaries of Ira G. Roberts, who allegedly died from accidental injuries sustained while in course of employment by Modern Laundry, Incorporated, wherein the beneficiaries filed a cross-action to recover as beneficiaries. From a judgment in favor of the beneficiaries, the compensation insurance carrier appeals.

Judgment reversed, and judgment rendered for compensation insurance carrier.

Martin, Moore & Brewster and Harris Brewster, all of Forth Worth, for appellant.

Chester B. Collins, of Fort Worth, for appellees.

SPEER, Justice.

This is an appeal by Fort Worth Lloyds, a corporation, compensation insurance carrier, from a judgment in favor of Katie Roberts and others, beneficiaries of Ira G. Roberts, who is alleged to have died from accidental injuries sustained while in course of employment by Modern Laundry, Inc.

Appellant instituted the suit to set aside an award of the Industrial Accident Board, and appellees responded by cross action to recover as such beneficiaries. The case was tried to a jury and appellees were awarded judgment on the cross action, from which the appeal is prosecuted by the appellant, insurance carrier.

Insofar as is necessary to state the pleadings upon which the trial was had, allegations were made in the cross petition that at the time Ira G. Roberts received the accidental injuries from which he died about a year later, he was in the employ of Modern Laundry, Inc., and that appellant was at that time carrying compensation insurance on the employees of the employer, including the said Ira G. Roberts. Wage rate was properly alleged and that appellees were the surviving beneficiaries entitled to receive compensation under the law for 360 weeks.

Appellant defended against the cross action by general denial and special pleas. Among the special defenses urged was one to the effect that deceased was not such an employee of the Modern Laundry, Inc., as was covered by the compensation insurance, for the reason that at the time of receiving the injuries complained of, he was engaged in illegal work which was called for and required by his purported contract of employment, in that the City of Fort Worth had passed and put into effect an ordinance prohibiting any person from doing plumbing work within said city limits without having first obtained a license therefor from the City of Fort Worth; that said ordinance prescribed a penalty against persons who violated it and that a copy of said ordinance was attached to the answer and made a part thereof. The attached ordinance is in printed pamphlet form and consists of about sixty pages, independent of index and other matters unnecessary to discuss.

Appellant has brought into its brief 91 assignments of error, but has predicated its appeal upon propositions germane to only a limited number of those assignments. The two assignments of error which we think are controlling, are, substantially, (1) the court erred in overruling appellant's motion for judgment non obstante veredicto, and (2) the court erred in overruling appellant's motion for an instructed verdict.

The uncontradicted and undisputed evidence reveals that for eight or ten years prior to the time Ira G. Roberts (deceased) received his injuries on June 3, 1938, he was employed by Modern Laundry, Inc. That the laundry plant was within the corporate limits of the City of Fort Worth and had for a number of years prior to the last mentioned date and at that time used a great deal of water piped to the plant from both the City water supply and from its own wells on the premises. In addition to the water supply, many pipes and fittings were used to convey steam into the plant. As a part of deceased's duties as such employee he did all pipe fitting, repairs and changes necessary in the water and steam conveyancers; when any part of it was too heavy for him to do alone, he was furnished helpers. Other duties enjoined upon him were to operate the boilers and attend to...