Maryland Casualty Co. v. Garrett

• Decision Date: 20 June 1929
• Docket Number: (No. 2311.)
• Citation: 18 S.W.2d 1102
• Parties: MARYLAND CASUALTY CO. v. GARRETT.
• Court: Texas Court of Appeals

18 S.W.2d 1102

MARYLAND CASUALTY CO. v. GARRETT.

(No. 2311.)

Court of Civil Appeals of Texas. El Paso.

June 20, 1929.

Rehearing Denied July 8, 1929.

Appeal from District Court, Crane County; Chas. L. Klapproth, Judge.

Suit by the Maryland Casualty Company against J. I. Garrett, to set aside an award of the Industrial Accident Board. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Kemp & Nagle and E. R. Smith, all of El Paso, for appellant.

R. H. Vogel, of Dallas, for appellee.

WALTHALL, J.

The appellant, Maryland Casualty Company, brought this suit in the district court of Crane county to set aside an award of the Industrial Accident Board of the state of Texas, of $5,776.88, made in favor of J. I. Garrett, an employee of the Tidal Oil Company, employer, the Maryland Casualty Company, insurer, under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309).

Appellee, Garrett, defendant in the trial court, answered by general demurrer, general denial, and by cross-action, alleging that on the 22d day of April, 1928, he was in the employ of the Tidal Oil Company, which company carried a policy of compensation insurance with the Maryland Casualty Company, and that on said date, while in the course of his said employment, he sustained injuries by reason of a sudden and unexpected flow of hydrogen sulphide gas, a poisonous substance, emitted from the oil well of said company where he was working, which gas and particles of oil he was caused to inhale and breathe into his lungs, and which were forced into his nose, mouth, and bronchial tubes, and that by reason thereof a dormant tubercular bacilli was caused to become active and developed a disease known as tuberculosis, and that by reason of which he has since that date been totally and permanently physically disabled. Garrett further alleged that he was working under employment agreement seven days a week, and that his average weekly wage was $30.28; he prayed for judgment for compensation for total and permanent disability, claiming compensation for 400 weeks from June 15, 1928, and asked judgment in a lump sum.

Appellant, by supplemental petition in answer thereto, filed a general demurrer and general denial.

The case was submitted to a jury upon special issues.

On the several special issues submitted the jury found substantially the following:

1. J. I. Garrett was in the employ of the Tidal Oil Company on April 22, 1928.

2. He sustained a personal injury on April 22, 1928.

3. Garrett was totally disabled as a proximate result of the injuries sustained about the 22d day of April, 1928.

4. The injuries sustained by Garrett on April 22, 1928, will be permanent.

5. A failure of the insurance company to pay Garrett any compensation which he may recover in a lump sum will work a manifest hardship and injustice on Garrett.

6 and 7. These questions were on the percentage of Garrett's disability, in the event such would change from time to time and were not answered.

8. The injury was received by Garrett while engaged in and about the furtherance of the affairs or business of his employer, the Tidal Oil Company.

9. The inhalation of gas and oil by Garrett on April 22, 1928, excited a latent and dormant tubercular condition.

10. The condition of Garrett is directly and proximately caused by the inhalation of oil and gas on April 22, 1928.

11. There was no intent on the part of the Tidal Oil Company, or Garrett, to violate the criminal law of the state of Texas by reason of Garrett's employment requiring him to perform work on Sunday.

12. The jury finds from a preponderance of the evidence that the personal injury sustained by Garrett on the 22d day of April, 1928, is the sole cause of his present physical condition.

13. The jury finds from a preponderance of the evidence that any disability sustained by Garrett is not the result of his inhaling hydrogen sulphide gas in small quantities over a period of several months.

14. The jury finds from a preponderance of the evidence that Garrett's disability is not the proximate result of his inhaling oil and gas in small quantities over a period of several months.

15. Garrett did not fail to take proper care of his own welfare after April 22, 1928.

16, 17, and 18. Conditional and not answered.

19. Practically the same as answers 13 and 14.

20. "Is the physical condition of the defendant, Garrett, as the same now exists, the result of a previous condition existing in the physical condition of the defendant prior to the time he was injured, if he was so injured? Answer yes or no." The jury answered, "No."

On the above answers judgment was rendered that appellant take nothing by its suit, that the final ruling and decision of the Industrial Accident Board theretofore rendered be set aside, and that Garrett, on his cross-action, have judgment in his favor for the lump sum of $5,776.88, and interest at legal rate thereon from date.

Appellant insurance company filed assignments of error and has duly perfected this appeal.

Opinion.

There are some matters of agreement the parties hereto entered into which we will state briefly without quoting therefrom at length. It was agreed that the appellant, Maryland Casualty Company, is a Maryland corporation and authorized to do business in this state; that the Tidal Oil Company was a subscriber to the Texas Employers' Liability Act through and by virtue of a policy of compensation insurance carried with appellant during the entire year of 1928; that all notices affecting jurisdiction were duly given; that Garrett filed his claim for compensation in due time; that, in the event judgment is rendered for compensation, the rate shall be based on a daily wage of $5 per day and a weekly compensation of $17.31; that April 22, 1928, was on Sunday.

Appellee Garrett made his claim for compensation based on a seven-day week employment contract, and for an injury which occurred on Sunday, which facts appellant insists show an illegal contract of employment, being in violation of the criminal laws of the state, and renders his contract of employment with the Tidal Oil Company illegal and unenforceable. If, for reasons stated, Garrett's contract of employment is illegal and unenforceable, it could not be said that he was in the service under a contract of hire and would not in fact be an employee within the meaning of the Workmen's Compensation Act.

Appellee Garrett testified, in substance: Is 37 years old, married, and has a wife and three children; his usual trade or occupation is an oil field worker and has been for eight years; at times was fireman, roustabout, and pumper. A roustabout works around the well pulling tubing, rods, replacing cups, reinserting pipe in the hole, and other work around a well. During April, 1928, and on April 22d, was working for the Tidal Oil Company at Crane; was in the employ of the Tidal Oil Company and was injured; "we were working pulling a well, or running the pipe back in the hole; while setting the pipe in the slips, just as set down on the slips, the gas came out with a bad force striking me in the face. The oil is cold, not ice cold, but cold, and unexpectedly it came out just like that (indicating). I jumped back and it strangled me and produced a cough. I went to coughing immediately. I was not really unconscious, but I was like a blind man and didn't realize what was going on around me. I staggered across the floor and put my arm around a derrick and cleared my throat until I was able to stand without assistance, and in a few minutes time, ten or twenty minutes, we went back and went ahead with our work. At the time this gas came out of the well Slim Lenaman and Elmer Taylor and another roustabout, whose name I do not know, were present. I was working under Slim Lenaman. * * * I continued to work that day and continued working until June 15th. I ceased work because my physical condition became so weakened from loss of sleep, loss of weight, continued fever and coughing, that I was too weak to continue work prior to June 28th, I believe my physical condition was as good as any living man's. I weighed about 228 or 230 pounds. I have not weighed recently. I have not worked for any one since June 15, 1928, because I was not able. I do not have any means of income and do not own any property. I have earned practically nothing since June 25, 1928. Estimated in dollars and cents I have earned perhaps twenty-five dollars. I worked seven days a week for the Tidal Oil Company. On April 22, 1928, my rate of pay was five dollars and a quarter. I began working in the Crane oil field on the 7th of November, 1927. One day I worked for the Independent, the following thirty days...