Maryland Casualty Co. v. Donnelly

• Decision Date: 21 April 1932
• Docket Number: No. 1169.,1169.
• Citation: 50 S.W.2d 388
• Parties: MARYLAND CASUALTY CO. v. DONNELLY et al.
• Court: Texas Court of Appeals

50 S.W.2d 388

MARYLAND CASUALTY CO. v. DONNELLY et al.

No. 1169.

Court of Civil Appeals of Texas. Waco.

April 21, 1932.

Rehearing Denied May 26, 1932.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Suit by the Maryland Casualty Company against Felix Donnelly and another to set aside an award of the Industrial Accident Board, wherein defendant named reconvened for compensation alleged to be due him. Judgment for defendants, and plaintiff appeals.

Reformed and as reformed affirmed.

Joseph W. Hale and E. B. Burleson, both of Waco, for appellant.

Bryan, Maxwell & Dardnne, of Waco, for appellees.

ALEXANDER, J.

This is a workman's compensation case. Donnelly is the injured employee, and Meriwether was alleged to be the employer, and the Maryland Casualty Company the insurer. Maryland Casualty Company brought the suit to set aside the award of the Industrial Accident Board, and Donnelly reconvened for the compensation alleged to be due him. The verdict of the jury was favorable to the employee, and the insurer appealed.

The appellant contends that the court should have given an instructed verdict in its behalf because there was no evidence introduced to prove that it was the insurance carrier. After the jury had been impaneled and before the introduction of the evidence proper was begun, the jury was retired, and the appellant, for the purpose of showing jurisdiction, introduced the award of the board wherein it was recited that Meriwether was a subscriber to the employers' liability law through and by virtue of a policy of compensation insurance carried by the Maryland Casualty Company. The appellees, in the absence of the jury and for the purpose of showing jurisdiction, introduced without objection a certified copy of a notice from Meriwether to the Industrial Accident Board that he had become a subscriber and that Maryland Casualty Company was the carrier. This notice was not signed by Maryland Casualty Company. Appellee likewise introduced copies of notice of injury dated April 5, 1929, one copy of which was sent by Donnelly to Maryland Casualty Company and the other to Industrial Accident Board. The appellant contends that this evidence cannot be considered because it was introduced in the absence of the jury and for the purpose of showing jurisdiction only. However, the appellant later introduced before the jury a second notice of injury from Meriwether to the Maryland Casualty Company of date May 4, 1929, notifying it of the injury to the appellee. The report was made out on blank forms bearing the letterhead of the appellant. Meriwether testified that the report was made out by a Mr. Fuller, who was in the service of the insurance company. Fuller had the report made out at the time he presented it to Meriwether for his signature. Meriwether further testified that he signed a report of the injury for Dr. Pope, who treated appellee, to enable the doctor to collect his fee from the insurance company, and that he made out the report of the injury of date April 5, 1929 (being the one introduced before the court in the absence of the jury), and that a copy thereof was sent to the Industrial Accident Board and the other copy to Maryland Casualty Company.

The Commission of Appeals, in the case of Barron v. Texas Employers' Ins. Ass'n, 36 S.W.(2d) 464, par. 9, held that very slight evidence is sufficient to establish that the insurance company sued was the carrier, where it fails to introduce any evidence in denial thereof. In that case the facts were very similar to the facts of this one. The evidence showed that a report of the injury was made out by the employer stating that the insurance was carried by the company sued; one copy thereof was sent to the Industrial Accident Board and the other copy to the insurance company; the board notified the company that a claim had been filed and the company acknowledged receipt thereof, and stated that it was investigating the claim. The court held such evidence sufficient as against a request for an instructed verdict. The evidence in the case at bar is as strong as the evidence in the case cited. Here, in addition to the notice sent by Meriwether to the Industrial Accident Board as introduced before the court without objection showing that the appellant was the carrier, we have evidence before the jury that the appellant was twice notified of the injury, once by Donnelly and once by the employer, and that its representative was investigating the claim and procuring statements with reference thereto. It introduced no evidence whatever to show that it was not the carrier. We therefore hold that the trial court correctly refused to give the instructed verdict as requested. See, in this connection, Texas Employers' Ins. Ass'n v. Perry (Tex. Civ. App.) 35 S.W.(2d) 1087 (writ ref.); Independence Indemnity Co. v. Polk (Tex. Civ. App.) 14 S.W.(2d) 330; Texas Employers' Ins. Ass'n v. Beckworth (Tex. Civ. App.) 42 S.W.(2d) 827.

The appellant contends that there was no evidence sufficient to raise a question of fact for the jury showing that Donnelly was an employee of Meriwether, the contractor. Meriwether entered into a contract with Borden Milk Company to erect a milk plant at West, Tex. One Busby was engaged in the transfer business and Donnelly was one of his employees. Meriwether purchased a carload of steel to be used in the erection of the plant, and upon its arrival at West, Busby was employed to unload it and deliver same at the south end of the plant. At that time on account of wet weather and muddy roads, Busby was unable to reach the plant with the steel and was compelled to unload it on the interurban right of way, about 150 feet from the plant. On the day of the injury Meriwether's foreman notified Busby to move the steel to the plant. Donnelly and others were employed by Busby to assist him in doing the work. When Busby and Donnelly arrived at the plant with a load of steel, Meriwether's foreman concluded to place the steel inside the building. Some of Meriwether's regular employees assisted in doing the work. The workmen, including Donnelly, moved one of the steel I-beams into the building and placed it in position on top of the framework where it was to become a part of the building. While attempting to unload another piece of steel from the truck and move it into the building, the piece of steel fell and crushed Donnelly's leg. The foreman instructed Donnelly, Busby, and others how to unload the steel and how to get it into the building. He told them it was too heavy to carry and to use his skids and rollers to get it into the building and his block and tackle to put it into place. He instructed the workmen what portion of the steel to move first and how to move it. Meriwether, who was called as a witness for appellant, testified that the placing of the steel in the building was a necessary part involved in the construction thereof and that he had the right and authority to discharge Busby and Donnelly if they had failed to follow the directions of himself or his foreman as to the manner and method of placing the steel in the building. The foreman testified that Busby was working under his control and supervision in moving the steel, and that if Busby, Donnelly, and the other workmen had not handled the steel as directed by him, he could have reported the matter to Meriwether and that Meriwether would have had the right to put Busby off the job. Donnelly testified to facts showing that he thought he was working under the direction of Meriwether's foreman in unloading the steel. Busby was paid $10 for moving the steel. Donnelly was not paid any wages directly by Meriwether. While, under the above state of facts, Donnelly was originally an employee of Busby and Busby was an independent contractor employed to unload the steel and move it to the south...