Galloway v. Lumbermen's Indemnity Exchange

• Decision Date: 22 March 1922
• Docket Number: (No. 303-3615.)
• Citation: 238 S.W. 646
• Parties: GALLOWAY et al. v. LUMBERMEN'S INDEMNITY EXCHANGE et al.
• Court: Texas Supreme Court

238 S.W. 646

GALLOWAY et al. v. LUMBERMEN'S INDEMNITY EXCHANGE et al.

(No. 303-3615.)

Commission of Appeals of Texas, Section A.

March 22, 1922.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by the Lumbermen's Indemnity Exchange and another, insurance carriers, against Susie Galloway and another, to set aside an award of the Industrial Accident Board awarding compensation for the death of the named defendant's minor son, Ernest Hadnot, the employee. From judgment of the Court of Civil Appeals (227 S. W. 536) affirming judgment for plaintiffs, defendants bring error. Affirmed.

David E. O'Fiel, of Beaumont, for plaintiffs in error.

Crook & Lord, of Beaumont, for defendants in error.

SPENCER, P. J.

Ernest Hadnot, a minor, under the age of 15 years, and an employé of the Reese-Corriher Lumber Company, was killed on February 7, 1918, in the course of his employment. At the time of the accident resulting in his death, the lumber company was a subscriber to the Employers' Liability Act, carrying a policy with the Lumbermen's Indemnity Exchange to protect those who were employés within the purview of the act.

Susie Galloway, mother of the minor, filed a claim as a dependent of the minor with the Industrial Accident Board against the Lumbermen's Indemnity Exchange. She was represented before the Board by David E. O'Fiel, an attorney of Beaumont, Tex. An award was made in her favor by the Board, and a percentage of the award was adjudged to be paid to her attorney.

The Consolidated Underwriters, successors to the Lumbermen's Exchange, being unwilling to abide by the final decision of the Industrial Accident Board, filed this suit against Susie Galloway and David E. O'Fiel to set aside this final ruling of the Board.

The grounds alleged for setting aside the award were that Ernest Hadnot was not killed in the course of his employment, and that Susie Galloway was not a dependent. It also pleaded that upon the trial of the cause it claimed the privilege of urging other grounds for setting aside the findings of the Board. To this petition Susie Galloway filed an answer alleging that the minor was injured in the course of his employment, and that she was dependent upon him for support. By way of cross-action she prayed that she be entitled to recover in a lump sum the amount awarded by the Board instead of weekly payment, as decreed by the Board.

At the request of defendant in error the trial court instructed the jury to return a verdict in favor of defendant in error, and judgment was rendered upon the verdict so returned. It is conceded that the court gave the peremptory instruction, because the uncontradicted evidence showed that the minor was employed in violation of acts of the Thirty-Fifth Legislature, c. 59, § 1, p. 104 (Vernon's Ann. Pen. Code 1916, art. 1050e), which prescribes a penalty for the employment of children under the age of 15 years by any person, or any agent or employé of any person, firm, or corporation, to labor in or about any mill or factory.

Upon appeal the honorable Court of Civil Appeals entertained the same views of the law as did the trial court, and therefore affirmed the judgment. 227 S. W. 536.

One of the very objects of the Child Labor Law, as declared by its caption and evidenced by its provisions, is to prohibit the employment of children under 15 years of age to labor in certain designated occupations. Section 5 of the act (article 1050i) provides for permits to be issued by the county judge, permitting children between the ages of 12 and 15 years to labor in the designated occupations, under certain conditions; one of the conditions being that the child is not to be employed in or around any mill, factory, workshop, or other place where dangerous machinery is used. Acts 35th Leg. c. 59, p. 104, § 5.

There is nothing in the Workmen's Compensation Law, passed by the same Legislature (Acts 35th Leg. c. 103, p. 269 [Vernon's Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246—91]) that expressly or impliedly repeals any of the provisions of the Child Labor Law. On the other hand, it expressly recognizes and provides against its repeal, as revealed by section 12i of the act (article 5246— 30), and therefore, impliedly at least, prohibits the employment of minors where such employment is prohibited by the statutes of the state. Section 12i reads:

"If it be established that the injured employé was a minor when injured and that under normal condition his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages and compensation may be fixed accordingly. This section shall not be considered as authorizing the employment of a minor in any hazardous employment which is prohibited by any statute of this state."

The broad definition given the term "employé" by the statute might be construed, if...