Home Life & Accident Co. v. Orchard

• Decision Date: 12 December 1920
• Docket Number: (No. 619.)
• Citation: 227 S.W. 705
• Parties: HOME LIFE & ACCIDENT CO. v. ORCHARD.
• Court: Texas Court of Appeals

227 S.W. 705

HOME LIFE & ACCIDENT CO. v. ORCHARD.

(No. 619.)

Court of Civil Appeals of Texas. Beaumont.

December 12, 1920.

Rehearing Denied January 12, 1921.

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Action by the Home Life & Accident Company against W. W. Orchard to set aside an award of compensation to defendant by the Industrial Accident Board. From judgment sustaining the award, plaintiff appeals. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, for appellant.

Sol E. Gordon and A. D. Lipscomb, both of Beaumont, for appellee.

WALKER, J.

This is an appeal from a judgment of the district court of Jefferson county sustaining an award made by the Industrial Accident Board of Texas in cause No. C-10868, W. W. Orchard, Employé, v. B. H. Willis, Employer, and Home Life & Accident Insurance Company. On the 27th day of May, 1917, W. W. Orchard was injured in the state of Louisiana in the course of his employment by H. B. Willis. At that time Willis was operating both in Louisiana and in Texas. Under the Workmen's Compensation Act of Louisiana (Act No. 20 of 1914), he carried insurance with the Georgia Casualty Company, for the protection of his Louisiana employés, and he also carried with appellant, under the Texas Workmen's Compensation Act (Laws 1913, c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246-zzzz]), protection for his Texas employés.

Appellant's first and second assignments of error present the following propositions:

1. At the time Orchard was injured, did the Texas Workmen's Compensation Act give extraterritorial effect to the policy issued by appellant to B. H. Willis?

On February 15, 1917, when this policy was written, the Workmen's Compensation Act of Texas contained no provision giving it extraterritorial effect, but by the terms of its policy appellant had contracted "to pay in the manner provided by the laws of such states or commonwealths of the United States as are in force at the time this policy takes effect, or any subsequent amendments thereto." Before Orchard was injured, this act was amended in the following words:

"If an employé who has been hired in this state, sustain injury in the course of his employment, he shall be entitled to compensation according to law of this state even though such injury was received outside of the state." Laws 1917, c. 103, pt. 1, § 19 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246—38).

This amendment clearly gives the act extraterritorial effect, and at the time it went into effect appellant's policy was in force. On the 29th of March, Smelker & Maxon, appellant's local agents at Beaumont, wrote Mr. Willis as follows:

"The Workmen's Compensation Law of this state, heretofore set out as chapter 179, Acts of 1913, has been amended by the Thirty-Fifth Legislature, just adjourned, and the amended bill has now been signed by the Governor.

"We wish to advise you that your policy of insurance, delivered to you by us, protects you completely under the amended Law as heretofore, and should any change or indorsement be necessary later same will have our prompt attention."

At the time this letter was written, this amendment had gone into effect. As we construe appellant's policy, this amendment comes within the terms above quoted, and, if we are right in this conclusion, then it gave extraterritorial effect to the policy at the time Orchard was injured. This construction follows both from its terms as quoted above and from the letter of its local agents to Mr. Willis. To so hold does not amount "to an invasion of the right of contract," nor is it "an effort to give retroactive effect to a statute inconsistent with a preexisting contract between the parties," as urged. Appellant had contracted in relation to future amendments, and, when these amendments took effect, they became as much a part of the policy as the provisions of the law at the time the policy was written.

2. At the time of his injury, was Orchard under the protection of appellant's policy with Willis, that is, was he one of Willis' Texas employés, or was he a Louisiana employé? Orchard entered the service of B. H. Willis in 1913, under a contract made in Beaumont, Texas. He remained in this employment until some time in 1919. During these years he worked for Mr. Willis wherever his duties called him, part of the time in Jefferson county, Tex., part of the time in Tyler county, Tex., part of the time in Oklahoma and Louisiana, and again in Panola and Marion counties, Tex. Mr. Willis was a contractor, doing pipe line work and other work connected with the oil industry. In 1916, after Orchard had finished his Oklahoma work, Willis placed him in charge of his work in the Caddo oil field. This field included a part of Louisiana, and Marion and Panola counties, Tex. Orchard was made general foreman of this work, with full authority to employ and discharge the employés working under him. Prior to his injury, he had had his home in Beaumont for many years, owned his home there, and kept most of his furniture there. His family lived there except when they were with him on one of Willis' jobs. When Willis sent him to the Caddo fields, he raised his salary to $125 per month and house rent. This rent was estimated at $25 per month. When he was placed in charge of the Caddo field operations, he carried his family with him, and they occupied a house belonging to Mr. Willis in Mooringsport, La. During this time Orchard maintained a field office in Louisiana and two field offices in Texas. The testimony does not show how much of his time was taken on work in Louisiana, nor how much in Texas; but it reasonably appears that he was going constantly from one headquarters to another. Sometimes the teams would work in both states the same day; then again they would work for three or four weeks at a time in Texas. He had not been in Texas for about a week at the time he was injured. No new contract was made by Willis with Orchard from the time Orchard entered his service in 1913 until he quit in 1919.

According to the undisputed testimony, during all the years of his employment by Willis, Orchard had his general headquarters in Beaumont, Jefferson county, Tex. From the general nature of his employment, as stated by us above, his absence from time to time from Beaumont in the service of Willis was only temporary. Even while on the Caddo oil field job, his home was in Texas and he maintained two field headquarters in Texas. While it is true that his family was in Mooringsport, La., they were there temporarily while he was doing that work.

Under these facts, at the time Orchard was injured, we believe he was a Texas employé of B. H. Willis, and was under the protection of appellant's policy.

On this issue we do not agree with appellant, that the undisputed proof shows that Willis paid appellant no premium on Orchard's wages; but, as we regard a finding on this issue immaterial to the determination of any issue in this case, we will not quote the testimony. If, under the laws of Texas, Orchard was protected by appellant's policy, this protection was not lost on the ground that Willis failed to pay the proper premium to appellant. If he owed the premium in 1917 and has not paid it, he still owes it, and appellant can collect it now, unless it is barred by the statute of limitation.

Nor do we see how appellant can be aided by the fact that, after his injury, Orchard presented his claim to the Georgia Casualty Company. This mistake was first made by the agents of appellant. They assumed that the liability was under the Louisiana policy,...