Georgia Casualty Co. v. Gibson

• Decision Date: 20 October 1928
• Docket Number: (No. 10343.)
• Citation: 11 S.W.2d 191
• Parties: GEORGIA CASUALTY CO. v. GIBSON.
• Court: Texas Court of Appeals

Page 191

11 S.W.2d 191

GEORGIA CASUALTY CO. v. GIBSON.

(No. 10343.)

Court of Civil Appeals of Texas. Dallas.

October 20, 1928.

Rehearing Denied December 1, 1928.

Appeal from District Court, Dallas County; P. O. Beard, Judge.

Suit by the Georgia Casualty Company against John Gibson to set aside a compensation award made by the Industrial Accident Board in favor of the defendant, wherein defendant filed a cross-action. Judgment for defendant, and plaintiff appeals. Affirmed.

Touchstone Wight Gormley & Price, of Dallas, for appellant.

White & Yarborough, of Dallas, for appellee.

JONES, C. J.

This case arose under the Workmen's Compensation Law (Vernon's Ann. Civ. St. 1925, arts. 8306-8309) and the appeal is from a judgment awarding to appellee, John Gibson, the compensation allowed by such law for injuries that resulted in total permanent incapacity. The judgment is against appellant, Georgia Casualty Company, and is the result of a suit filed by it to set aside an award theretofore made to appellee by the Industrial Accident Board on a claim for injuries received while working as an employee of the Kean Lumber Company, whose compensation insurance appellant carried. Appellee answered appellant's suit, and filed a cross-action, in which he sought an award more favorable to him than that given by the Industrial Accident Board. The judgment followed the findings of a jury on special issues submitted by the court. The following is deemed a sufficient statement for an understanding of the issues involved:

Appellee was in the employ of the Kean Lumber Company, and was injured on January 23, 1926. The business of the employer is described in the policy of compensation insurance as that of "lumber yards and business material dealers," and also as "planing and molding mills," with its office and place of business on Beckley street, in Oak Cliff, the city of Dallas. In January, 1926, the Kean Lumber Company was constructing 18 or 20 houses on Twelfth street in Oak Cliff, some distance from its place of business on Beckley street. The material going into this construction was hauled from the lumber yard on Beckley street, and some of this material placed in a shed to await its use in the buildings. Part of the material stored in the shed consisted of window sashes and window weights. Appellee appears not to have been working in the lumber yard on Beckley street, but his employment was to wait upon the carpenters and others in their construction of this building, and to pour concrete used in such construction. His wages were paid by the Kean Lumber Company, sometimes in its office and sometimes at the place he was working. On the morning of the injury appellee was directed to bring 52 window weights from this shed for the use of workmen engaged in the actual construction of these houses. This order appellee complied with by loading the said weights in a wheelbarrow and attempting to roll it from the shed to the place where they were to be used. While rolling the loaded wheelbarrow, it struck some obstacle, with the result that appellee was struck in the groin with great force with one of the handles of the wheelbarrow, from which he received the injuries forming the basis of his complaint. A short while after the injury appellee went to his home, and was treated by a physician. Some time afterwards, estimated by the witnesses to be from one to three weeks, he again went to work for the Kean Lumber Company and worked for a few weeks. He afterwards worked for a concrete company, and has tried to pick some cotton during the time since his injury. Under appellee's testimony, he was unable to do manual labor, suffering very much on each attempt to do the work. He described his work after his injury as that of merely "piddling around." In picking cotton, he was only able to gather about 30 or 40 pounds a day.

At the time of the trial he claimed to be wholly unable to do anything because of the injury. The testimony of the physician who waited upon him following his injuries is to the effect that appellee is unable to do manual labor, and another physician, who examined him, corroborated this testimony as to his inability to do manual labor. Both of these physicians ascribed his physical condition to the injury he received on January 23, 1926. Another physician who examined appellee at the instance of appellant ascribed his physical condition, not to the injuries complained of, but to an enlarged prostate gland which, in his opinion, could not have resulted from the injury. Appellee testified at length and in much detail to his physical condition for the period of time that had elapsed from the receipt of the injury to the time of trial, and to his attempts to work and his inability to do so, because of the attendant pain and consequent loss of strength. The effect of his testimony is to raise the issue of total incapacity, as that term is used in the Workmen's Compensation Law, and applied by the courts to one incapable of following any avocation other than that of hard manual labor. The medical testimony offered by appellee is to the effect that the injury is permanent. The medical testimony offered by appellant is to the effect that no total incapacity resulted from the injury complained of, and, if there is such total incapacity, it resulted entirely from another and different cause than the injury.

The evidence shows that appellee notified his employer soon after the injury was received, but there is no evidence that any notice was given appellant or any claim filed with the Industrial Accident Board, within the statutory time of 6 months, after the date of the receipt of the injury. The evidence of appellee is to the effect that he repeatedly told Mr. Kean, the manager of his employer, that he wanted pay for his injury, and that Mr Kean repeatedly promised him that he should be paid; that, when it became evident to appellee that he would not be paid for his injury, he went to consult an attorney, and then, for the first time, heard that there was compensation insurance; that he is unable to read and write, and did not know there was an insurance company carrying insurance for the employees of the Kean Lumber Company. A notice and claim in proper form was prepared by the attorney and sent to appellant and to the Industrial Accident Board. This claim bears date of August 12, 1926, about 7 2/3 months after the accident.

The insurance policy in question is in the usual form issued for compensation insurance, and its terms conform to all of the requirements of the Workmen's Compensation Law. Item 6 of this policy is as follows:

"This agreement shall apply to such injuries so sustained by reason of the business operations, described in said Declaration 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."

Under the terms of the policy, the Kean Lumber Company was required to report all employees, included as beneficiaries within said policy, to appellant. The policy also provides that, if any operations should be undertaken by the Kean Lumber Company that are not described or rated in the declaration, the lumber company should pay premiums thereon at the time of the final adjustment between it and the insurance company.

Appellant alleged in its petition as grounds for setting aside the award of the Industrial Accident Board in favor of appellee that appellee was not an employee of the Kean Lumber Company, and that the work in which he was engaged at the time of his injury was not within the provisions of the insurance policy. In a supplemental petition, in reply to the cross-action filed by appellee, it answered by general demurrer and general denial, and again affirmatively pleaded, as a defense to the cross-action, that appellee was not such an employee of the Kean Lumber Company as made him a...