Maryland Casualty Co. v. Drummond

• Decision Date: 23 February 1938
• Docket Number: No. 3183.,3183.
• Citation: 114 S.W.2d 356
• Parties: MARYLAND CASUALTY CO. v. DRUMMOND.
• Court: Texas Court of Appeals

114 S.W.2d 356

MARYLAND CASUALTY CO. v. DRUMMOND.

No. 3183.

Court of Civil Appeals of Texas. Beaumont.

February 23, 1938.

Rehearing Denied March 9, 1938.

Appeal from District Court, Bexar County; Everett F. Johnson, Judge.

Suit under the Workmen's Compensation Act by J. C. Drummond against the Maryland Casualty Company to set aside an award of the Industrial Accident Board. The Maryland Casualty Company by cross-action filed suit to set aside the award of the board. From the judgment, the Maryland Casualty Company appeals.

Affirmed.

R. H. Mercer and H. C. Covington, both of San Antonio, for appellant.

Charles J. Lieck and Ben S. Morris, both of San Antonio, for appellee.

O'QUINN, Justice.

This case arose under the Texas Workmen's Compensation Law. Vernon's Ann. Civ.St. art. 8306 et seq. A. H. Beck Foundation Company was the employer, J. C. Drummond the employee, and Maryland Casualty Company the compensation insurance carrier. On August 2, 1935, appellee while in the course of his employment received an injury for which he made application for compensation before the Industrial Accident Board. Upon hearing the board made its final award and ruling, and after due notice appellee filed this suit to set aside that ruling. Appellant likewise gave due notice that it would not abide the ruling of the board and by cross-action herein filed suit to set aside the award of the board.

There is no question as to appellee's employment, or that he was injured, nor as to the extent of his injury, nor that he was covered by insurance carried by appellant. The only thing for decision is what should be the rate of his recovery—that is, what was the average weekly wages of appellee—the basis for his compensation.

The record discloses that A. H. Beck Foundation Company was doing foundation work, operating under a PWA contract with the federal government, at what is known as State Hospital at Fort Sam Houston, San Antonio, Tex., and appellee was one of its employees; that the employees were listed as unskilled or skilled laborers by the federal authorities who had charge of approving such works, and of passing upon the classification of the employees, and of fixing their rate of pay and hours of work; that under and by their authority appellee was classed as an unskilled worker, and his pay fixed at 40 cents per hour and 30 hours per week. Appellee was working in connection with a crane machine which lifted and placed material as its operator was directed by signals. Appellee stood on the ground in view of the crane operator and directed by signals to him what and where the crane should load or unload the materials moved by it. Appellee had not complained either as to his classification as an unskilled laborer, or the pay he received for his services, but had accepted same and was so working at the time he received his injury for which compensation is sought.

He seeks to recover compensation as a skilled laborer at $1 per hour and eight hours per day. He alleged that he had not worked for his employer at such work for substantially the whole of the preceding year, but that other employees of the same class as himself had worked in the same or similar work in the same vicinity for substantially the whole of the year immediately preceding his injury, and that such employees received for their services in such employment $1 per hour or an average daily wage of $8 per day, wherefore he was entitled to recover compensation of $20 per week. In the alternative he alleged that if he be mistaken as to other employees thus working, then in such event he was entitled to compensation based upon a fair, just, and equitable average weekly wage to both him and appellant, which he alleged to be at least the sum of $44 per week, entitling him to receive $20 weekly compensation. He fully pleaded the injuries received by him and the result thereof, and asked for compensation in a lump sum.

Appellant answered appellee's suit by general demurrer and general denial. By way of appeal from the board's award, it pleaded the grounds for setting aside the award, and specially alleged that the contract of appellee fixed his wage at 40 cents per hour and 30 hours per week. That after appellee's injury it recognized its liability and immediately began to pay him the sum of $7.20 weekly compensation, which was 60 per cent. of his weekly wage of $12 received by him under his employment contract, which he had accepted. It further specially answered admitting that appellee was totally and permanently disabled and entitled to compensation, and that it was willing to pay such compensation, but that at the time appellee was injured he was working under the PWA code and its regulations, making 40 cents per hour and 30 hours per week, which established his average weekly wage at $7.20 per week. That the PWA classification of appellee as an unskilled laborer was approved by the inspectors under said code, and that appellee was endeavoring to secure higher wages and compensation than is allowed under the law and a higher rate of pay than he was receiving under his contract of employment and was being paid and accepted by him at the time of his injury. That no consideration was received by appellee for a higher rate of pay because the insurance policy covering appellee was based upon his wage of 40 cents per hour, his actual wage at the time of his employment and when he was injured. That appellant recognized its liability to appellee because of his injury, and actually paid to him 47 weeks of compensation of $7.20 per week; that being 60 per cent. of his weekly wage at 40 cents per hour 30 hours per week as per his contract of employment.

The case was submitted to a jury upon special issues, in answer to which they found: That there was no other employee of the same class as plaintiff at the time of his injury who had worked substantially the whole of the year immediately preceding plaintiff's injury in the same or similar employment in the same or a neighboring place; that $30 was a just and fair weekly wage of plaintiff; and that the appellee was not entitled to compensation to be paid him in a lump sum. On this verdict the award of the Industrial Accident Board was set aside, and judgment was entered for appellee at the rate of $18 per week for 401 weeks, less the sum of $338.40 previously paid him.

Appellant's assignments of error against the ruling of the court sustaining appellee's special exceptions to certain portions of appellant's answer cannot be considered, for in that there is nothing in the record showing that such exceptions were ruled upon by the court. 3 Tex.Jur., § 153, p. 231; Reilly v. Birmingham, Tex.Civ.App., 53 S.W.2d 825. However, we find in the record the evidence on the matters against which the special demurrers were presented. It appears that the evidence was admitted and considered.

What we have said disposes of appellant's fourth assignment.

It is admitted that appellee's average weekly wage cannot be determined under first subdivision 1, of section 1, of article 8309, R.C.S. The jury found in answer to special issue No. 2, in effect, that such wage could not be found under first subdivision 2 of section 1 of article 8309. Then resort was had to first subdivision 3 of section 1 of said article to ascertain the weekly wage. In answer to special issue No. 3 the jury found $30 to be the weekly wage. Based on this finding, the judgment was rendered.

Appellant assigns several errors against this finding and consequent judgment. Among them are that such finding was against the overwhelming weight of the evidence bearing on that issue; and that such finding was contrary to the law, article 8309, R.C.S., and the facts.

We think these assignments must be sustained. It is without dispute that the employer, A. H. Beck Foundation Company, was operating under a PWA contract with the federal government; that under this contract the employees were passed upon, classified, and their wages fixed and the number of hours of work per week prescribed by the government supervisors acting in connection with the project; that appellee was classed as an unskilled laborer and his pay fixed at 40 cents an hour and the hours at 30 per week; that knowing his classification, and wage and hour schedule, appellee accepted the employment and was thus working on the job when he was injured. His contention that his classification as a laborer was wrong, and his wage schedule unjust and not in accordance with that of other like employees in the vicinity, and so, in claiming compensation, he was not bound by the terms of his labor contract specified by the federal government and employer, and in force alike with all laborers in his class, is not tenable. If there were other employees in such work outside of PWA projects receiving higher pay, and working longer hours, still, we think this not material. The federal government through its PWA projects was endeavoring to alleviate the unemployment situation, and through its rules and regulations governing its aiding efforts, sought to help as many idle persons as possible, and appellee must have known this, and must be held to have accepted his employment with full knowledge of the wage and hours tendered him. The statute, article 8309, we think has direct application to the actual day wage pay, and hours per day, or week, worked in the employment in fixing the average weekly wage, not what might be had in like employment under different circumstances, or from different employers who paid a different scale. We think that where the average weekly wages of an employee cannot be found under first subdivisions 1 or 2 of section 1, of article 8309 R.C.S., and resort is had to first subdivision 3 of section 1 of said article, if the actual daily wage is known, then such wage should be taken as the basis for computation of his average weekly wage. Petroleum Casualty Co. v. Williams, Tex. Com.App., 15 S.W.2d 553; ...