Georgia Casualty Co. v. McClure

• Decision Date: 22 March 1922
• Docket Number: (No. 778.)
• Citation: 239 S.W. 644
• Parties: GEORGIA CASUALTY CO. v. McCLURE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 644

239 S.W. 644

GEORGIA CASUALTY CO. v. McCLURE.^*

(No. 778.)

Court of Civil Appeals of Texas. Beaumont.

March 22, 1922.

Rehearing Denied March 29, 1922.

Appeal from District Court, Liberty County; J. L. Manry, Judge.

Suit by the Georgia Casualty Company against M. A. McClure, to set aside a decision of the Industrial Accident Board. Judgment for defendant sustaining a decision of the Board, and allowing damages and attorney's fee, and plaintiff appeals. Judgment modified by striking therefrom the allowance of damages and attorney's fee, and, as reformed, affirmed.

Frank S. Anderson, of Galveston, for appellant.

E. B. Pickett, Jr., of Liberty, for appellee.

O'QUINN, J.

This was a suit brought by appellant, Georgia Casualty Company, against appellee, M. A. McClure, to set aside the final ruling and decision of the Industrial Accident Board rendered October 3, 1920, awarding appellee compensation at the maximum rate of $15 per week, beginning June 1, 1920, and continuing for a period of not to exceed 401 weeks from and after May 24, 1920.

Appellee answered, and alleged that, within 20 days after rendition of said final ruling and decision of the Industrial Accident Board, appellant gave written notice to the Industrial Accident Board and to appellee that it would not agree to and was not willing to be bound by said final ruling and decision of said Board, and that suit would be filed to set aside said final ruling and award; that said notice was given on the 3d day of November, 1920, and that appellant did not file suit to set aside said final ruling and decision within 20 days after giving said notice as required by law, and also that appellant failed to abide by and comply with the terms and provisions of article 5246—44, Vernon's Ann. Civil Statutes 1918, and prayed for judgment against appellant for the full sum allowed by the Industrial Accident Board, $6,015, together with 12% damages on same and a reasonable attorney's fee, which was alleged to be $2,250.

Upon a trial before the court without a jury, judgment was rendered in favor of appellee for compensation for total incapacity at the maximum rate of $15 per week, beginning June 1, 1920, and continuing thereafter down to and including the date of the judgment, and to continue in the future unless altered or modified by the Industrial Accident Board, or by agreement between the parties approved by the Industrial Accident Board, but in no event to continue longer than 401 weeks, and allowing appellee the sum of $721.80 as 12% damages upon the full amount of compensation ($6,015), and the further sum of $2,000 as attorney's fees, to which said judgment appellant excepted, and has brought this appeal.

At the request of appellant the court filed his findings of fact and conclusions of law, which are:

"Findings of Fact.

"(1) I find that the plaintiff, Georgia Casualty Company, is now, and was on the dates hereinafter mentioned, a foreign corporation organized under the laws of the state of Georgia, and duly licensed to transact business in this state, and that on the 24th day of May, 1920, the Higgins Oil & Fuel Company was a subcsriber to the Employers' Liability Act, and on that date carried a policy of insurance with the plaintiff, Georgia Casualty Company.

"(2) I find that on the 24th day of May, 1920, the defendant, M. A. McClure, was in the employ of said Higgins Oil & Fuel Company, and as such employee was covered by said policy of insurance issued by the plaintiff as a subscriber to said Employers' Liability Act.

"(3) I find that while in the employ of said Higgins Oil & Fuel Company the defendant, M. A. McClure was engaged in the work of a fireman, and thus assisting on and before May 24, 1920, in the drilling of a well for oil in the Hull oil field in Liberty county, and had been so employed for about two months prior to May 24, 1920; that his hours of work were from 6 p. m. to 6 a. m. (This is evidently a mistake by the court, the recording disclosing that the defendant's hours of work were from 5:30 a. m. to 5:30 p. m., 10-hour shift); that on May 24, 1920, and for several weeks prior thereto, one Jim Hodge was the day (night) fireman, and the company's rules required him to come on duty at 6 a. m. (This is evidently a mistake, the record disclosing that he went on duty at 5:30 to 6 p. m., the court getting the hours of labor of the two employees interchanged), but for a number of days prior to May 24th said Jim Hodge had been arriving at his work late, thus requiring defendant, M. A. McClure, to remain on duty overtime, and on this date, May 24, 1920, said Hodge again arrived some 30 or 40 minutes late, and McClure complained at him for so doing, reminding him that he was expected to come on the work and relieve defendant at 6 a. m. (should be 6 p. m.), and that when he did so he forced defendant to remain on duty overtime, as defendant's duty required him to remain at work until relieved by the day (night) fireman; whereupon said Hodge replied in a rough manner substantially that he didn't care what defendant thought about it, as that he (Hodge) was not working for defendant, but for the company, and after the quick passage of a few remarks back and forth between them said Hodge assaulted McClure, and after such fight had been in progress a few moments Ed Hodge, a brother of said Jim Hodge, struck McClure a heavy blow upon the head with a large piece of timber, crushing his skull and knocking him unconscious; that this quarrel and difficulty occurred before defendant had quit his work as fireman, and he was still at his position on duty and engaged in and about his work near the derrick where his employer required him to be.

"(4) I find that, after being injured in the difficulty above mentioned, the defendant, M. A. McClure, remained in a hospital in Houston for about two months, and there is now a wound on his head covering a space of about two inches in diameter from which the skull bone was removed, and the only protection to the brain is the skin grown over such opening; that he is partly deaf, and the vision of his right eye has been materially damaged as a result of said injury, his weight is much reduced, his strength greatly impaired, and otherwise he has been weakened and rendered helpless to a great extent; and further I find that, as a result of said injury sustained by defendant as above set forth, he became totally incapacitated for work on May 24, 1920, and has continued to suffer said total incapacity down to and including this date, and will continue to suffer said total incapacity for an indefinite period in the future, and in all probability such total incapacity is permanent.

"(5) I find that the average weekly wages of the said M. A. McClure, on the 24th day of May, 1920, was the sum of $36.75, and therefore, under the Workmen's Compensation Act, he was entitled to compensation at the maximum rate of $15 per week.

"(6) I find that after the defendant, M. A. McClure sustained the injury above mentioned and described he made claim for compensation to the Industrial Accident Board, and that on the 22d day of October, 1920, said Board rendered its final ruling and decision upon said claim, such final decision awarding to defendant compensation for total incapacity at the maximum rate of $15 per week for 401 weeks, beginning June 1, 1920, and that thereafter, on, to wit, the 3d day of November, 1920, the plaintiff, Georgia Casualty Company, gave written notice to the Industrial Accident Board and to the defendant, M. A. McClure, that it did not agree to and was not willing to be bound by said final ruling and decision of said Board of date October 22, 1920, such notice to said Board and to defendant bearing date November 3d, 1920, and being mailed at Galveston, Tex., on that date, by plaintiff's duly authorized attorney, one copy of such notice being addressed to the Industrial Accident Board at Austin, Tex., and one copy addressed to the defendant, M. A. McClure, at Hull, Tex., and both notices being mailed by plaintiff at Galveston, Tex., on November 3, 1920. And this suit was filed by plaintiff in the district court of Liberty county, Tex., on November 24, 1920.

"Conclusions of Law.

"(1) I conclude that the injuries received by defendant, M. A. McClure, as above found, were sustained by him while engaged in the course of his employment as fireman for said Higgins Oil & Fuel Company.

"(2) I conclude that the plaintiff, Georgia Casualty Company, failed to bring this suit to set aside the final ruling and decision made by the Industrial Accident Board on October 22, 1920, as above found, within 20 days after giving notice to said Board and to the defendant herein that he did not agree to and was not willing to be bound by such final ruling and decision, and therefore, having failed to bring this suit within such 20-day period, and having refused to obey or comply with the said final ruling and decision of the Industrial Accident Board, I conclude that judgment should be rendered by this court sustaining such ruling and final decision of such Board in its entirety, and also that the defendant, M. A. McClure, is entitled to recover the further sum of 12 per cent. as damages upon the amount of compensation so awarded to him by such final decision of the Industrial Accident Board, and also the additional sum of $2,000 as attorney's fees for the prosecution and collection of such compensation, and 6 per cent. interest on said sum of $2,000, and also upon the said 12 per cent. damages from this date until paid, such 12 per cent. damages amounting to $721.80, and also 6 per cent. interest from date of judgment upon all said weekly installments of $15 which have matured up to this date, all such weekly installments that hereafter accrue, and which are not promptly paid at the maturity thereof; and accordingly judgment in favor of defendant has been entered.

                            "J. L. Manry, Judge Presiding."
                

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