Holland v. Stuckey

• Citation: 282 S.W. 951
• Decision Date: 30 January 1926
• Docket Number: (No. 11373.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: HOLLAND v. STUCKEY et al.
• Court: Court of Appeals of Texas

282 S.W. 951

HOLLAND v. STUCKEY et al.

(No. 11373.)^*

Court of Civil Appeals of Texas. Fort Worth.

January 30, 1926.

Rehearing Denied March 6, 1926.

Appeal from District Court, Wichita County; Guy Rogers, Judge.

Action by T. Holland against W. A. Stuckey and others. From an adverse judgment, plaintiff appeals. Reversed and rendered for plaintiff.

Engelking & Dotson, of Electra, for appellant.

Kenley, Dawson & Holliday, of Wichita Falls, for appellees.

BUCK, J.

In this case T. Holland sued the partnership of W. A. Stuckey & Son, C. A. Stuckey, for damages by reason of injuries alleged to have been sustained by plaintiff while engaged in laying a pipe line in Wichita county. He sued for $3,500 damages. The defendants answered, among other defenses, that they were subscribers under the Workmen's Compensation Act, and that at the time of the injury they had insurance with the United States Fidelity & Guaranty Company, and that they had given notice to the Industrial Accident Board of Texas of the fact that they had become subscribers, and that they had fully complied with the requirements of such law.

The cause proceeded to trial, and was tried before a jury on special issues. The jury found: (1) That the defendants failed to use ordinary care to provide the plaintiff with reasonably safe tools with which to perform the work in question; (2) that the servants of defendants, with whom the plaintiff was working at the time of the alleged injury, released and let a six-inch pipe line fall upon the end of a pipe which plaintiff was holding; (3) that such servants were guilty of negligence by reason of their releasing and letting the six-inch pipe line fall upon the end of the pipe which plaintiff was holding; (4) that such negligence was the proximate cause, in whole or in part, of plaintiff's injury, and but for which such injury would not have occurred; (5) that plaintiff was entitled to $3,500 damages; (6) that plaintiff was not negligent in failing to watch the movements of the other members of the pipe line gang when he attempted to pull the support out from under the pipe line; (7) that plaintiff was not negligent in standing over the pipe when he attempted to pull the same from under the pipe line; (8) that plaintiff was not negligent in failing to turn loose his pipe when the order to lower the pipe line was given; (9) that plaintiff was not negligent in attempting to pull the support from under the pipe line before the pipe line had been lifted clear of said support; (10) that the levers and timbers used by the pipe line crew were not the usual and customary equipment used in handling pipe lines of the kind in question; (11) that such levers and timbers used by the pipe line crew were defective.

The court in his judgment, after setting out the charge of the court, including the issues and answers thereto, further found as follows:

"But it appearing to the court that the defendants herein had become subscribers under the Workman's Compensation Law prior to the injury, and it further appearing that defendants had complied with articles 5246-77, 5246-78 (Vernon's Ann. Civ. St. Supp.), by posting the notices required by the Industrial Accident Board in the way, at the time and in the manner prescribed thereby, which policy of insurance so taken out by defendants being in force and effect at the time of the injury, all of which facts appearing uncontradicted, although none of which being actually known to the plaintiff herein until about April, A. D. 1924, and after the filing of this suit, it is the opinion of the court that such facts constitute a bar to plaintiff's recovery herein."

The evidence showed that if any notice was given it was by posting a notice in the plant owned by the defendants, and operated under the name of the Lone Star Tank Company, at Wichita Falls; the evidence further showed that the defendants were engaged at Wichita Falls in "the tank car business" and in the "pipe line business." W. A. Stuckey testified as follows:

"My name is W. A. Stuckey. I live at Wichita Falls. I have lived in this county since 1919. I am in the tank car business. I was in the pipe line business. Well, I did pipe lining off and on until 1923. My business associate is my son. We are partners in business. We designate our partnership Lone Star Tank Company, W. A. Stuckey & Son. Some time we do business under both names. But it is the same parties. What one concern is interested in, the other is in the same way. I know the plaintiff in this case — Mr. Holland. The first time I saw him was some time in May, 1923. I do not remember just the date. I could not say whether it was one day or three days before his injury. It was before his injury. He was working out there on the job at that time. I was supervising the job in a way, would go to the job and leave it again. I did not pretend to stay there all the time. Some days I would stay one-half a day up and down the line. Other days I would not spend over an hour or so, maybe only a few minutes. My son was never out there. He was looking after the tank car business.

"At the time Mr. Holland was injured they were doing pipe line work. I mean the general job. I could not tell you just what they were doing at that time. The general job was putting in a four-inch line. The ditch had already been dug, and it was the pipe crew that was working. I was not there on the job at the time this injury occurred to Mr. Holland. * * *

"At the time we took out the policy of insurance the agent gave us instructions about posting the notices. And we posted the notices at our principal place of business, according to his instructions. Our principal place of business at that time was on the old Burkburnett road, about two miles north of Wichita Falls. We did not have any other place of business in the county at that time. We placed these notices in conspicuous places around our place of business there. We did that directly after we took out the policy of insurance. We placed those notices on the posts of the building, the full length of the building, one on each post. Those notices were substantially the same as the one you have there, I think."

The evidence is uncontradicted that plaintiff was hired to do this work in the town of Electra, and that he did not know that W. A. Stuckey & Son had any other business, or were operating under the name of Lone Star Tank Company; that the work of laying the pipe line at the time plaintiff was injured was being done about 4 miles south of Electra and about 30 miles from Wichita Falls. The evidence further shows as the plaintiff testified:

"If W. A. Stuckey & Son had been carrying insurance on their employees at the time I was injured and had notified me of that fact, I would have certainly attempted to get the insurance. * * * They never gave me any statement about the insurance. Mr. W. A. Stuckey told me that they did not have insurance. I found out that they claimed to have insurance, but he told me out of his own mouth that he did not have it. Mr. Stuckey said, `I haven't got it.' I learned that the defendants claimed to have insurance when you filed the pleadings in this case stating it. Yes sir; that was the first time that I ever learned they claimed insurance. No sir; after I learned that Mr. Stuckey claimed to have had insurance I never took any steps towards getting it. My lawyer told me that the defendants were setting up a claim that they had insurance on their men, but Mr. Stuckey told me, setting out here in his car the first time we were down here for trial, that he did not have...