Galloway v. Lumbermen's Indemnity Exchange
| Decision Date | 10 December 1920 |
| Docket Number | (No. 618.) |
| Citation | 227 S.W. 536 |
| Parties | GALLOWAY et al. v. LUMBERMEN'S INDEMNITY EXCHANGE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Orange County; E. L. Bruce, Special Judge.
Suit by the Lumbermen's Indemnity Exchange and another, insurance carriers, against Susie Galloway and another, to set aside ruling and award of the Industrial Accident Board awarding compensation for death of the named defendant's son, Ernest Hadnot, the employé. From judgment for plaintiffs, defendants appeal. Affirmed.
D. E. O'Fiel, of Beaumont, for appellants.
C. A. Lord, of Beaumont, for appellees.
On February 7, 1918, Ernest Hadnot, a minor under the age of 15 years, was working for the Reese-Corriher Lumber Company at its sawmill in Orange county, Tex., and on said date said minor, while discharging the duties of his employment, as claimed by the appellants, received personal injuries which soon thereafter resulted in his death. At the time of the injury and death of Ernest Hadnot, the Reese-Corriher Lumber Company was carrying a policy of insurance on the employés at its said mill, issued by the Lumbermen's Indemnity Exchange in accordance with the Employers' Liability Act of this state (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246 zzzz). Within due time after the injury and death of Ernest Hadnot, Susie Galloway, his mother, gave notice to the Reese-Corriher Lumber Company and to the Lumbermen's Indemnity Exchange, claiming compensation because of the death of her said son, and thereafter filed her claim with the Industrial Accident Board of this state for such compensation. After due notice by the Industrial Accident Board, a hearing on the claim was had before that board, which resulted in an award in favor of Susie Galloway and against the Lumbermen's Indemnity Exchange, of $5.19 per week for a period of 360 weeks, a portion of which award, however, was allowed to Susie Galloway's attorney, David E. O'Fiel.
After such ruling and award by the Industrial Accident Board and within due time, Lumbermen's Indemnity Exchange notified Susie Galloway's attorney, David E. O'Fiel, that it would not abide by the ruling and award of the Industrial Accident Board, but would contest the same, and thereafter, in due time, the Lumbermen's Indemnity Exchange and Consolidated Underwriters, the latter concern being a successor to the Lumbermen's Indemnity Exchange, filed suit in the district court of Orange county, where the injury to Ernest Hadnot occurred, to set aside the ruling and award of the Industrial Accident Board, as above shown. The defendants, Susie Galloway and David E. O'Fiel, her attorney, filed their answer, and also by way of cross-bill Susie Galloway sought to recover, in the trial de novo, compensation as the dependent mother of Ernest Hadnot.
The case was tried with a jury, and resulted in an instructed verdict in favor of the plaintiffs, Lumbermen's Indemnity Exchange and Consolidated Underwriters. After their motion for new trial had been duly made and overruled, the defendants, Susie Galloway and David E. O'Fiel, brought the case by appeal to this court.
The decision of one question of law will, in our opinion, dispose of all contentions made by appellants in this court. The record shows without dispute that at the time the minor, Ernest Hadnot, received the injuries which resulted in his death, he was under the age of 15 years, and that he was working in and about the sawmill of the Reese-Corriher Lumber Company in connection with and in the use of dangerous machinery, which was a part of said mill. At the time of the employment of said minor by Reese-Corriher Lumber Company, as well as at the time of his injury and death, the act of 1917 of the Legislature of this state, prohibiting the employment of minors under the age of 15 years around dangerous machinery, etc., was in effect. Section 1 of that act reads as follows:
"Any person, or any agent or employé of any person, firm or corporation, who shall hereafter employ any child under the age of fifteen (15) years, to labor in or about any factory, mill, workshop, laundry, theater or other place of amusement * * * shall be deemed guilty of a misdemeanor, and upon conviction in a court of competent jurisdiction, shall be punished by a fine of not less than twenty-five ($25.00) dollars, nor more than two hundred ($200.00) dollars, or by imprisonment in the county jail for not more than 60 days, or by both such fine and imprisonment." Acts 1917, p. 104 (Vernon's Ann. Pen. Code Supp. 1918, art. 1050e).
That portion of the Workmen's Compensation Act of this state which applies in this case contains this provision:
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...Tube Co., 1920, 268 Pa. 504, 112 A. 73; Mangus v. Proctor-Eagle Coal Co., 1921, 87 W.Va. 718, 105 S.E. 909; Galloway v. Lumbermen's Indemnity Exch., Tex.Civ.App., 1921, 227 S.W. 536, affirmed Tex.Com.App., 238 S.W. 646; Rock Island Coal Mining Co. v. Gilliam, 1923, 89 Okl. 49, 213 P. 833; M......
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Galloway v. Lumbermen's Indemnity Exchange
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