Gaines v. Traders & General Ins. Co.

• Decision Date: 05 October 1936
• Docket Number: No. 4640.,4640.
• Citation: 99 S.W.2d 984
• Parties: GAINES v. TRADERS & GENERAL INS. CO. et al.
• Court: Texas Court of Appeals

99 S.W.2d 984

GAINES v. TRADERS & GENERAL INS. CO. et al.

No. 4640.

Court of Civil Appeals of Texas. Amarillo.

October 5, 1936.

Rehearing Denied January 4, 1937.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wilbarger County; W. N. Stokes, Judge.

Suit under the Workmen's Compensation Act by H. P. Gaines to set aside an award of the Industrial Accident Board in favor of the Traders & General Insurance Company and another. From a judgment denying relief, the plaintiff appeals.

Affirmed.

L. B. Godwin and Kimbrough & Boyce, all of Amarillo, for appellant.

T. R. Boone and Kearby Peery, both of Wichita Falls, and Lightfoot & Robertson, of Fort Worth, for appellees.

MARTIN, Justice.

Appellant was injured while working as a carpenter on a per diem basis for the Vernon Meat Company. He filed a claim under the Texas Workmen's Compensation Law (Rev.St.1925, art. 8306 et seq., as amended, Vernon's Ann.Civ.St. art. 8306 et seq.) with the Industrial Accident Board. Thereafter, he filed this suit in district court to set aside an award of that Board, which was unsatisfactory to him. His cause of action was submitted on numerous special issues, all answered favorably to him. Upon a motion, non obstante veredicto, judgment was entered for appellee.

Appellant's contentions here are briefly in substance:

1. That his injury occurred while working as an employee for Vernon Meat Company in the usual course of the trade business and occupation of his employer, and therefore came within the terms of article 8309, § 1, par. 3, R.S.1925, and of the workmen's compensation policy issued by appellee to said company.

2. If not, such policy by its terms enlarged the liability of appellee under the Texas Workmen's Compensation Law so as to include him as an employee and to cover the injury sustained by him.

3. That if mistaken in both of these contentions, it was intended by both contracting parties to so include him, and the omission to do so was due to a mutual mistake of the contracting parties, and asked for a reformation of the policy and for judgment under it as so reformed.

4. Finally, he contends that appellee was estopped to set up the defense that he was so included.

His pleadings support all these contentions, and are not here questioned. The only question before us is the sufficiency of the evidence to support either.

The Vernon Meat Company was a wholesale dealer in "meats, fish and poultry" in the town of Vernon. It decided to construct a new addition to its plant, and to place therein a storage vault. Appellant, who had done casual jobs for this company sometimes, but was not a regular employee, was hired by the day as a carpenter on such work. He describes the incident of his injury as follows: "We were constructing a cold-storage room, and placing the trackage upon which to hang meat. A necessary scaffold was about 6 ft. above the concrete floor and owing to a sudden collapse of it or a part thereof I fell, unobstructed, upon and against the said floor and some metalic substances."

The stipulations of the policy, thought to be controlling, are as follows:

"All business operations, including the operative management and superintendence thereof, conducted at or from the locations and premises defined above as declared in each instance by a disclosure of estimated remuneration of employees under such of the following Divisions as are undertaken by this Employer are declared and set forth below.

                   Classification of Operation                    Estimated       Rate per     Estimated
                                                                Total Annual     $100 of      Premium
                                                                Remuneration.  Remuneration
                8021—Meat, Fish or Poultry Dealers
                  Wholesale (N. P. D.) when located on
                  or adjoining same premises with 2089
                  `Packing Houses'.....................          $3600.00         $1.92         $69.12
                8810—General Office Employees (N O C)..          $2400.00           .08           1.92
                8742—Outside Salesmen, Collectors and
                  messengers (wherever engaged) who do
                  not deliver merchandise ............           $4800.00           .51          24.48
                7380—Chauffeurs and their Helpers, Commercial
                  including incidental garage employees
                  ............................................    $4000.00         1.87          74.80
                Minimum Premium $27.00                          Estimated Total Annual Premium $170.32
                Adjustment of premium Quarterly                                Deposit Premium $70.00.
                

"The foregoing enumeration and description of employees include all persons employed in the service of this Employer in connection with the business operations above described to whom remuneration of any nature in consideration of service is paid, allowed or due together with an estimate for the Policy Period of all such remuneration. This enumeration and description with the estimated remuneration shall also include the President, any Vice-President, Secretary or Treasurer of this Employer, if a corporation, if actually performing such duties as are ordinarily undertaken by a superintendent, foreman or workman, but any such designated officer not so engaged shall not be included in such enumeration, description or estimated remuneration. The foregoing estimates of remuneration are offered for the purpose of computing the advance premium. * * *

"This Employer is conducting no other business operations at this or any other location not herein disclosed—except as herein stated: No exceptions. * * *

"To Pay Promptly to any person entitled thereto, under the Workmen's Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due,

"(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this Policy, each of which statutes is herein referred to as the Workmen's Compensation Law, and

"(2) For the benefit of such person the proper cost of whatever medical, surgical, nurse or hospital services, medical or surgical apparatus or appliances and medicines, or, in the event of fatal injury, whatever funeral expenses are required by the provisions of such Workmen's Compensation Law.

"It is agreed that all of the provisions of each Workmen's Compensation Law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so far as they apply to compensation or other benefits for any personal injury or death covered by this Policy, while this Policy shall remain in force. Nothing herein contained shall operate to so extend this Policy as to include within its terms any Workmen's Compensation Law, scheme or plan not cited in an endorsement hereto attached. * * *

"This agreement shall apply to such injuries so sustained by reason of the business operations described in said Declarations which, for the purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with, or in relation to, such work places.

"The premium is based upon the entire remuneration earned, during the Policy Period, by all employees of this Employer engaged in the business operations described in said Declarations together with all operations necessary, incident or appurtenant thereto, or connected therewith whether conducted at such work places or elsewhere in connection therewith or in relation thereto; excepting however the remuneration of the President, any Vice-President, Secretary or Treasurer of this Employer, if a corporation, but including the remuneration of any one or more of such designated officers who are actually performing such duties as are ordinarily undertaken by a superintendent, foreman or workman. If any operations as above defined are undertaken by this Employer but are not described or rated in said Declarations, this Employer agrees to pay the premium thereon, at the time of the final adjustment of the premium. * * *

"No condition or provision of this Policy shall be waived or altered except by endorsement attached hereto signed by the President, a Vice-President, Secretary, or Assistant Secretary of the Company; nor shall notice to any agent, nor shall knowledge possessed by any agent, or by any other person, be held to effect a waiver or change in any part of this contract. * * *

"This policy is issued by the Company and is accepted by this Employer with the agreement that the classifications and rates of premium are approved by and are subject to modification by the Board of Insurance Commissioners of the State of Texas in accordance with the manual and rating plans established by the Board of Insurance Commissioners such approval being in accordance with the authority imposed in the Board of Insurance Commissioners by law. Modification of rates of premium, either expressed in the policy or upon any endorsement thereafter attached, shall be expressed by endorsement bearing the approval of the Board of Insurance Commissioners and naming the effective date of such change.

"This endorsement, together with the Policy to which it is attached, is the form prescribed by the Board of Insurance Commissioners in accordance with the authority imposed in the Board of Insurance Commissioners by law. Any contract or agreement not written into this form shall be void and have no effect."

The policy herein sued on, containing the above, was delivered to and accepted by said Vernon Meat Company without complaint, and was in full force and effect on the date of appellant's injury.

An "employee" is defined by the Texas Workmen's Compensation statute (article 8309, § 1) as follows: "`Employe' shall mean every person in the...