Montgomery v. United Salt Corporation

• Decision Date: 16 December 1937
• Docket Number: No. 10537.,10537.
• Citation: 112 S.W.2d 494
• Parties: MONTGOMERY v. UNITED SALT CORPORATION.
• Court: Texas Court of Appeals

112 S.W.2d 494

MONTGOMERY v. UNITED SALT CORPORATION.

No. 10537.

Court of Civil Appeals of Texas. Galveston.

December 16, 1937.

Rehearing Denied January 13, 1938.

Appeal from Harris County Court; Phil D. Woodruff, Judge.

Action by Douglas Montgomery against the United Salt Corporation for damages in furnishing plaintiff with contaminated water to drink while in defendant's service working in its underground salt mine. From an order sustaining the plea in abatement, plaintiff appeals.

Affirmed.

Williams, Lee, Sears & Kennerly, of Houston (R. B. Voight and Sam R. Fisher, both of Houston, of counsel), for appellant.

Sewell, Taylor, Morris & Garwood, of Houston, for appellee.

GRAVES, Justice.

Under the disposition determined upon for this appeal, no opinion is required of this court; but in deference to the able counsel for both sides, who have so helpfully briefed and argued it, this general statement of the grounds upon which the decision is based is made:

In his trial petition, the appellant sued the appellee, as his employer, who was a subscriber under the Employer's Liability Law, Vernon's Ann.Civ.St. art. 8306 et seq., for $910 damages at common law for its alleged negligence in furnishing him contaminated water to drink while in its service working in its underground salt mine, whereby he had become affected with amoebic dysentery, to his great bodily injury, hurt, and suffering.

In so doing, he declared he had twice presented "his claim to be compensated for such injuries and to have such medical and hospital expenses paid under the terms of the Employer's Liability Act of the state of Texas" to the Industrial Accident Board, but that it had, by its respective orders dated November 20 of 1935, and February 12 of 1936, which second order had been entered nunc pro tunc as of the date of the first one, denied him any relief, first holding "that said plaintiff had not sustained an injury covered by the terms of said act," and next time holding "that the board had no jurisdiction over said claim," attaching copies of both such orders to his petition "for jurisdictional purposes only."

After having thus declared the amenability of both himself and his employer to the compensation law, and that he had so drunk the contaminated water to his injury while in the course of that employment for the appellee, he further declared, in paragraph 3 of his petition, that such water had also been drunk by him at times other than during the hours in which he was in the course of that employment, that is, when he was outside of it; that at such other times — when he was outside the course of his employment — he was an invitee of the appellee, who, to use his own language, "was under a duty to use reasonable care that such water was pure, wholesome and unpolluted; but that defendant failed to exercise such reasonable care and the water furnished and offered was contaminated and polluted, which fact was unknown to plaintiff at all times material to this suit, and as a result of drinking such water at the places and times aforesaid, plaintiff developed diseases of the intestinal tract, which diseases were the result of the carelessness or negligence of the defendant, its agents, managers, servants and/or employees, without any fault, carelessness or negligence whatsoever on the part of the plaintiff."

Without going into the trial upon its merits, the learned trial judge sustained this plea in abatement of the cause of action so declared upon, as presented by the appellee, and dismissed appellant's suit:

"6. Without waiving the foregoing pleas in abatement, but still insisting upon the same, and answering further only in the event said pleas are overruled, this defendant would further show to the court that this suit was prematurely and improperly brought, in that a final award having been entered in this suit on November 20, 1935, and a further order having been entered on February 12, 1936, the validity of which this defendant does not now admit but in all things denies, the plaintiff has in all things failed to prosecute an appeal from said order of the Industrial Accident Board denying his claim for compensation, and has permitted the time within which said appeal might be taken to the courts of this state, under the provisions of the law of this state, to elapse, and said time having long since elapsed, under the provisions of the Workmen's Compensation Law of this state no cause of action against this defendant exists, but that the order of the Industrial Accident Board being final and conclusive, and being a final order within the meaning of those terms, as used within the provisions of the Workmen's Compensation Law of this state, the only remedy available to plaintiff was an appeal to...