Holiday Lodge Nursing Home, Inc. v. Huffman

• Decision Date: 16 July 1968
• Docket Number: No. 7890,7890
• Parties: HOLIDAY LODGE NURSING HOME, INC., Appellant, v. Verna HUFFMAN, et vir, R. D. Huffman, Appellees. . Texarkana
• Court: Texas Court of Appeals

Page 826

430 S.W.2d 826

HOLIDAY LODGE NURSING HOME, INC., Appellant, v. Verna HUFFMAN, et vir, R. D. Huffman, Appellees.

No. 7890.

Court of Civil Appeals of Texas.

Texarkana.

July 16, 1968.

Robert Fairchild, Billy Hunt, Fairchild & Hunt, Center, for appellant.

Welby K. Parish, Gilmer, Ernest Martin, Gladewater, Clifton L. Holmes, Gilmer, for appellees.

FANNING, Justice.

A venue case. Appellees Verna Huffman and husband, R. D. Huffman, in the District Court of Gregg County, Texas, sued appellant Holiday Lodge Nursing Home, Inc., a corporation, alleging damages and injuries received by Mrs. Verna Huffman to her back by reason of appellant's negligence while Mrs. Huffman was an employee of appellant nursing home and while Mrs. Huffman was lifting a patient of appellant's nursing home at and under the direction of one of appellant's supervisors.

Appellant filed its plea of privilge to be sued in Shelby County, Texas, the county of its residence. Appellees duly controverted the plea seeking to maintain venue in Gregg County under Subsection 9a of art. 1995, Vernon's Ann.Tex.Civ.St.

After hearing the evidence adduced, the trial court overruled the plea of privilege. Appellant has appealed.

The trial court overruled appellant's plea of privilege without making findings of fact or conclusions of law which is proper. Rule 385(e) Tex.R.Civ.P.

Where a case is tried without a jury, and no findings of fact or conclusions of law are filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory, and every issue sufficiently raised by the testimony must be resolved in support of the judgment. 3--B, Tex.Jur., Sec. 873, p. 278; John F. Buckner & Sons v. Allen, Tex.Civ.App., 272 S.W.2d 929, wr. dism.

Appellant presents four points wherein it contends to the effect that there was 'no evidence' to support the trial court's implied findings of negligence and proximate cause in support of the order overruling appellant's plea of privilege and that such implied findings of negligence and proximate cause were 'so against the overwhelming preponderance of the evidence as to be manifestly unjust and wrong.'

The only evidence adduced at the hearing was that offered by appellees. The evidence showed that appellant was a corporation, employing 44 employees at its nursing home in Longview, Gregg County, Texas, on May 30, 1965, that appellee Verna Huffman was an employee of appellant on May 30, 1965, and that she was injured on that date while engaged in the course of her employment in Gregg County, Texas. While appellant was eligible to become a subscriber under the Texas Workmen's Compensation Law, it was a nonsubscriber, and Sec. 1 of art. 8306, V.A.T.C.S., found below, ¹ is applicable to this case.

Verna Huffman testified to the effect as follows: that at the time of her injury she had six years' experience as a nurse's aide; it was her experience that the custom and common practice in hospitals and nursing homes was for them to furnish sufficient personnel in order that nurse's aides would not be required to lift patients by themselves and the common practice was for such establishments to provide orderlies or more than one nurse's aide to do such lifting; that she injured her back while lifting a patient off a bedpan; that she performed this act at the explicit direction of her supervisor, Mrs. Breaux; that in none of her employment as a nurse's aide had she before been requested to lift a patient by herself but that during her short tenure at appellant's nursing home she had seen other nurses doing so; that on the night when she was injured, the wing in which she worked was understaffed; that the nursing home employed male orderlies to do heavy work, including lifting patients, but on the night she was injured none were on duty; that it was possible to request assistance from those employees who worked in the other wing of the nursing home, but that as a matter of practice such assistance was not requested due to the extreme difficulty in getting help where it was needed; that she was instructed to lift the patient by her supervisor and that she did not expect to get hurt when she did lift the patient. With reference to how she was injured, Mrs. Huffman testified in part as found below. ² Mrs. Huffman further testified that at the time of her injury she was 44 years old and then in good health; that after her injury she was not in good health and stated that she had never injured her back before, and testified as to her injuries and as to medical and hospital bills, with her said hospital and medical bills being in excess of $1,000.00. We think it is also clear from the undisputed evidence of appellee Verna Huffman that appellant failed to provide orderlies or other proper assistance to Verna Huffman in the performance of her duties as alleged by her.

Appellees introduced answers of appellant to interrogatories wherein appellant admitted it was a corporation, employing 44 employees on May 30, 1965, that on said date Mrs. Verna Huffman was an employee, that on said dated Darlene Breaux, L.V.N., charge nurse, was a supervisor acting in a supervisory capacity for appellant and that on said date appellant was not covered by Workmen's Compensation Insurance.

It is the duty of an employer to furnish an adequate force of competent workmen for carrying on the work requested of the employees with reasonable safety. Also the master must use ordinary care to see that there are sufficient servants present at a particular piece of work to insure the safety of all engaged in the labor. The master's duty is continuous and nondelegable where the supplying and placing of a sufficient number of workmen is essential to the safety of the employees. Furthermore, the master is not exonerated if his foreman, in misjudgment, stands by and allows an inadequate crew to undertake the particular task. 38 Tex.Jur.2d, p. 277. Also in this connection see Western Union Tel. Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977.

We think under the facts and circumstances shown in this case it was the duty of appellant to furnish its employee, appellee Mrs. Verna Huffman, adequate assistance in carrying on the work requested and specifically directed of her in a proper condition and with reasonable safety. The closest case near in point with the facts in the case at bar is White v. Duncan, Tex.Civ.App., 323 S.W.2d 621, no writ. This was a venue case, where the employer was a nonsubscriber to the Texas Workmen's Compensation Law, governed by Sec. 1 of Art. 8306, and venue was maintained under Subsection 9a of the venue statute, with the court holding that in failing to provide adequate and competent help, a hotel operator was guilty of negligence proximately causing injuries to a female employee who strained her back while assisting her supervisor, at the request of the supervisor, in lifting onto a chair a paralyzed guest of the hotel who had fallen to the floor. The record in this case shows that the work was not voluntarily done by the injured employee, but was done at the specific request of her supervisor, the agent of the hotel keeper.

Although not a venue case, the case of Loud v. Sears, Roebuck & Co ., Tes.Civ.App., 262 S.W.2d 548, no writ, is in some respects analogous to the case at bar. This was an action against an employer, not a subscriber (although eligible) under the Workmen's Compensation Act, for a back injury to an employee as a result of lifting a motor, wherein it appeared that the employer's building superintendent had instructed the employee to return to a loading dock to assist in lifting a motor. A summary judgment against the employee was granted by the trial court, but the cause was reversed and remanded by the Dallas Court of Civil Appeals. The opinion in this case, written by Chief Justice Dixon, contains an excellent discussion of the problem involved there and distinguishes several cases therein cited which are also cited and relied on by appellant in this case. We quote from Loud, supra, in part, as follows:

'From the above quotations it will be observed that appellant testified that Arthur gave him specific instructions to be present at a definite time to do a specific thing: help move the motor. Appellant did...