Lloyds Casualty Co. of New York v. Grilliett

Decision Date10 July 1933
Docket NumberNo. 4358.,4358.
Citation64 S.W.2d 1005
CourtTexas Court of Appeals

Appeal from District Court, Rusk County; T. O. Davis, Judge.

Suit by R. L. Grilliett against the Lloyds Casualty Company of New York to set aside the final award of the Industrial Accident Board. Judgment for plaintiff, and defendant appeals.


Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.

Jones & Jones, of Marshall, and Smith & West, of Henderson, for appellee.

JOHNSON, Chief Justice.

Suit was filed in the district court of Rusk county by appellee, R. L. Grilliett, as plaintiff, against appellant, Lloyds Casualty Company of New York, as defendant, in an appeal from and to set aside a final award of the Industrial Accident Board of Texas in which he alleged compliance with all jurisdictional prerequisites; that he was an employee of T. Spears, an oil well rig-building contractor, a subscriber under the Workmen's Compensation Act, carrying compensation insurance with appellant, covering appellee as an employee; that appellee received injury in the course of his employment; and was entitled under the facts alleged to compensation in a lump sum for total and permanent incapacity based upon his average weekly wage of $84. Appellant answered by general demurrer and general denial. The case was tried to a jury and submitted on special issues. In response to the issues submitted, the jury found that appellee sustained total incapacity by reason of his injuries; that such total incapacity was permanent; that appellee and his employer, T. Spears, entered into an agreement, under the terms of which appellee agreed and intended to, and T. Spears obligated and intended to obligate appellee to, perform labor seven days per week, including Sunday; that the work to be performed on Sunday under said agreement was a work of necessity; that manifest hardship and injustice would otherwise result if compensation was not paid in a lump sum. Upon the findings of the jury the court entered judgment for the appellee for the sum of $6,533.43; to which appellant duly excepted, and has perfected its appeal to this court.

Appellant's first three assignments raise the points: (1) That since the appellee's contract obligated him to work on Sunday, it was in violation of the Sunday Labor Law of the State of Texas (articles 283, 284, P. C.), and therefore appellee is barred from a recovery for his injuries, and the court should have instructed the jury to return a verdict in favor of appellant; and (2) that the finding of the jury that it was a work of necessity was unsupported by, and against the great weight and preponderance of, the evidence. Appellant's assignments in this respect cannot be sustained. The evidence shows that appellee entered into a verbal agreement with T. Spears under which appellee obligated himself to work for Mr. Spears seven days in the week, including Sunday, building and dismantling drilling rigs, for which appellee was to receive $12 per day; and that the injuries were received by appellee on Sunday, March 29, 1931, while he and five other men were engaged in dismantling a drilling rig over an oil well that had been completed, and for the purpose of moving the drilling rig to another location, termed an "offset" well. It was shown from the evidence that there was an immediate and urgent need for the drilling of this offset well in order to protect the interest of the landowner and leaseholder from being drained of their oil and gas by virtue of the flowing well, to offset which the proposed well was to be drilled. The question was one of fact for the jury. It was fairly submitted, and the evidence supports their finding that the work was work of necessity in which the appellee was engaged at the time of his injury. Daniels v. Southern Surety Co. (Tex. Civ. App.) 40 S.W.(2d) 209; Casualty Reciprocal Exchange v. Stephens (Tex. Com. App.) 45 S.W.(2d) 143; Maryland Casualty Co. v. Marshall (Tex. Civ. App.) 14 S.W.(2d) 337; Maryland Casualty Co. v. Garrett (Tex. Civ. App.) 18 S.W.(2d) 1102; Texas Employers' Ins. Ass'n v. Henson (Tex. Civ. App.) 31 S.W.(2d) 669, 672. In Daniels v. Southern Surety Co., supra, it is said: "The mere fact that the contract is for the performance of work on all the seven days of the week does not, as a matter of law, constitute such contract an unlawful one. * * * The question as to whether or not the changing of the tire on Sunday was, under the attending facts and circumstances, a work of necessity was for the determination of the jury, since the statute has not nor has it undertaken to define what constitutes works of necessity permitted by its provisions to be performed on Sunday. There is no doubt that the performance of certain work on Sunday might under the surrounding circumstances constitute a violation of the Sunday law, while under other circumstances the performance of the same work would not be a violation of the law." In Texas Employers' Ins. Ass'n v. Henson, supra, it is said: "There is, therefore, no presumption that a contract is illegal simply because it provides for work on Sundays. On the contrary, the presumption of innocence of law violation obtains."

Appellant complains of special issue No. 1 of the court's charge as being duplicitous and upon the weight of the evidence. The question complained of reads: "Do you find from a preponderance of the evidence that the plaintiff, R. L. Grilliett, sustained injuries resulting in total incapacity on the occasion in question? Answer Yes or No as you find the facts to be." The...

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19 cases
  • Grieger v. Vega
    • United States
    • Texas Supreme Court
    • July 14, 1954
    ...v. Hebert, 118 Tex. 314, 15 S.W.2d 213; Finck Cigar Co. v. Campbell, 134 Tex. 250, 133 S.W.2d 759; Lloyds Casualty Company of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, error refused; Mills v. Kellahin, Tex.Civ.App., 91 S.W.2d 1097, writ dismissed; Burrow v. Davis, Tex.Civ.App., 2......
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    ...and in 52 S.W.2d 247; Daniels v. Southern Surety Co., Tex.Civ.App., 40 S.W.2d 209, writ of error refused; Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, writ of error refused; United Employers Casualty Co. v. Curry, Tex. Civ.App., 152 S.W.2d 862; Federal Underwr......
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    ...859, writ refused; Traders & General Ins. Co. v. Boyd, Tex.Civ.App., 121 S.W.2d 463, writ dismissed; Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ. App., 64 S.W.2d 1005, writ refused. In the last cited case the rule there announced is distinguished from the holding in Employers' Cas......
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    ...Wooten v. Crosby County, 219 S .W.2d 553 (Tex.Civ.App., Amarillo, 1949, writ ref.); Lloyds Casualty Co. of New York v. Grilliett, 64 S.W.2d 1005, 1006 (Tex.Civ.App., Texarkana, 1933, writ ref.). Where evidence as to a fact is positive and not disputed or questioned, it is to be taken as an ......
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