Moore v. Lumbermen's Reciprocal Ass'n

• Decision Date: 09 May 1922
• Docket Number: (No. 795.)
• Citation: 241 S.W. 1105
• Parties: MOORE et al. v. LUMBERMEN'S RECIPROCAL ASS'N.
• Court: Texas Court of Appeals

Page 1105

241 S.W. 1105

MOORE et al. v. LUMBERMEN'S RECIPROCAL ASS'N.

(No. 795.)

Court of Civil Appeals of Texas. Beaumont.

May 9, 1922.

Rehearing Denied May 31, 1922.

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Proceeding by Minnie Sanders, for compensation for injuries under the Employers' Liability Act, opposed by the Mardez Lumber Company, employer, and the Lumbermen's Reciprocal Association, insurance carrier. The insurance carrier brought suit to set aside the award of the Industrial Accident Board, and from the judgment setting aside award, and giving them insufficient relief, Mrs. Alice Moore and others, the heirs of Minnie Sanders, appeal. Affirmed.

Collins, Morris & Barnes, of Beaumont, for appellants.

Andrews, Streetman, Logue & Mobley, of Houston, for appellee.

O'QUINN, J.

This is an agreed case on the facts. They show:

(1) That on December 29, 1919, the Mardez Lumber Company was operating a sawmill at Benford, Tex., and on said date was a subscriber to the Employers' Liability Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246—91), carrying a policy of insurance with the Lumbermen's Reciprocal Association, appellee herein. On said date Pete Sanders was an employé of said Mardez Lumber Company, and was covered by said policy of insurance, and on said date sustained injuries in the course of his employment, resulting in his immediate death. Minnie Sanders, wife of said Pete Sanders, and daughter of appellants, gave due notice to the Mardez Lumber Company and to the Lumbermen's Reciprocal Association, appellee, of the injury and death of her husband, and made claim for compensation, liability for which was admitted by appellee. The average weekly wages of Pete Sanders was $18.79, making the compensation rate $11.27 per week. Appellee paid to Minnie Sanders $5.63 per week for 27 weeks, but withheld $5.64 per week for said time for the unborn child of the enceinte mother, Minnie Sanders. Checks for $5.63 were sent to Minnie Sanders for the weeks ending July 13 and July 20, 1920, which she did not cash. The unborn child, for which the 29 installments for $5.64 each were reserved, was stillborn on July 20, 1920. Minnie Sanders died intestate July 21, 1920, leaving no debts owing by her estate. Her sole heirs are her father, Ed. L. Moore, and mother, Mrs. Alice Moore, appellants. At the time of Minnie Sanders' death her mother, Alice Moore, was divorced from her husband, and was living with her daughter, Minnie Sanders, and was dependent upon her son-in-law, Pete Sanders, for support. The appellee refused to pay the 29 weekly payments of $5.64 each which had been reserved for the stillborn child, amounting to $163.56, and also refused to pay the two payments for the weeks ending July 13th and July 20th, amounting to $11.26, for which checks had been issued to Minnie Sanders, but not cashed. The total amount of insurance which had accrued to the beneficiaries of Pete Sanders up to the death of his wife, Minnie Sanders, amounted to $326.83, of which $152.91 had been paid, leaving $174.82 unpaid.

(2) That on August 12, 1921, the Industrial Accident Board made the following award:

"Pete Sanders (Dec'd), Employee, v. Mardez Lumber Company, Employer, Lumbermen's Reciprocal Association, Insurer. F-1651.

"On this 12th day of August, A. D. 1921, after due notice to all parties at interest, came on to be considered by the Industrial Accident Board the claim for compensation made and asserted herein by Mrs. Minnie Sanders, surviving widow of Pete Sanders, deceased, and her estate against the Lumbermen's Reciprocal Association; and,

"It appearing that the questions involved herein have not been settled by agreement of the parties, as provided by law, the Board finds as follows:

"(1) That on December 29, 1919, the Mardez Lumber Company was a subscriber to the Employers' Liability Act, and on that date carried a policy of insurance with the Lumbermen's Reciprocal Association.

"(2) That on said 29th day of December, 1919, Pete Sanders was in the employ of the said Mardez Lumber Company, and as such employé was covered by said policy of insurance.

"(3) That on said date and while engaged in the course of his employment the said Pete Sanders sustained injuries which resulted in death as set out in report of accident, claim for compensation and other evidence now of record in this cause.

"(4) That the average weekly wages of the said Pete Sanders, deceased, made the predicate of compensation herein is the sum of $18.79, and his surviving legal beneficiary and her estate are entitled to compensation at the rate of $11.27 per week.

"The Board further finds that said Pete Sanders, deceased, left as his sole and exclusive surviving legal beneficiary his widow, Mrs. Minnie Sanders, who became entitled to recover of and from the Lumbermen's Reciprocal Association compensation as an absolute and vested right for the definite period of 360 weeks at the rate of $11.28 per week, payable weekly from week to week as each payment accrued.

"The Board further finds that claim for compensation was made and asserted herein by the said Mrs. Minnie Sanders and that the said Lumbermen's Reciprocal Association admitted liability and assumed the payment of compensation; that at the time said claim was filed and asserted there was expectation that a child would be born to the said Mrs. Minnie Sanders as issue of the marriage union between herself and the deceased, Pete Sanders, and that as a consequence of that expectation and status the said Lumbermen's Reciprocal Association withheld payment of one-half of each weekly payment of said compensation that was due and payable to the said Mrs. Minnie Sanders, and that as a result there was only in fact paid to said beneficiary twenty-six weekly payments at $5.63 per week and aggregating the total sum of $146.38; that on July 20, 1920, the expected posthumous child was born, but that life was extinct at birth and that therefore the said stillborn child did not become a legal beneficiary of the deceased, Pete Sanders; that on July 21, 1920, the said Mrs. Minnie Sanders, the said sole and exclusive surviving legal beneficiary of Pete Sanders, deceased, died herself; that on the date of her death there had accrued 29 2/7 weekly payments of the compensation which she was entitled to recover of said Lumbermen's Reciprocal Association at said weekly rate of $11.27, and aggregating the total sum of $330.05; and there was therefore an unpaid balance of compensation that had accrued for the benefit of the said Mrs. Minnie Sanders in the sum of $183.67 at the time of her death.

"The Board further finds that the estate of the said Mrs. Minnie Sanders, now deceased, stands in her place and stead in respect to his compensation benefit and that said estate and its legal representatives are therefore entitled to recover herein of and from said Lumbermen's Reciprocal Association the unpaid and unaccrued remainder of said compensation that became a vested and absolute right in the said beneficiary; that said estate and legal representative thereof is entitled to an order herein awarding compensation for said unpaid balance of compensation in said sum of $183.67 that had accrued on the date of the death of Mrs. Minnie Sanders, deceased, and also to an award for the payment of the unaccrued weekly compensation at the rate of $11.27 for the period of 330 5/7 weeks that had not accrued at the date of the death of the said Mrs. Minnie Sanders.

"The Board further finds that Mrs. Minnie Sanders and her estate have been represented in the presentation to and prosecution of said claim for compensation by Collins, Morris & Barnes, attorneys at law residing at Beaumont, Texas, and that their services rendered in this connection have been of the reasonable value of 15 per cent. of the first $1,000 and 10 per cent. of all amounts in excess of said first $1,000 paid on this award, to be paid out of weekly installments of compensation from week to week as the same accrue.

"It is therefore ordered, adjudged and decreed by the Industrial Accident Board that the Lumbermen's Reciprocal Association pay to the estate of Mrs. Minnie Sanders, deceased, and to its legal representatives the sum of $183.67, and that it also pay to said estate and said legal representatives weekly compensation at the rate of $11.27 per week for the period of 330 5/7 weeks, said weekly compensation to begin to accrue on July 22, 1920, and to be payable thereafter from week to week as each weekly payment accrues until said period has fully expired, less attorney's fee hereinafter ordered paid to Collins, Morris & Barnes, attorneys of Beaumont, Texas.

"It is further ordered, adjudged and decreed by the Board that the Lumbermen's Reciprocal Association pay to Collins, Morris & Barnes, attorneys of Beaumont, Texas, a fee in a sum equal to 15 per cent. of the first $1,000 and 10 per cent. of all amounts in excess of said first $1,000 paid on this award, to be paid out of weekly compensation from week to week as the same accrue.

"It is further ordered, adjudged and decreed by the Board that when this award has been paid and satisfied in accordance with its terms and provisions that the Lumbermen's Reciprocal Association will stand fully acquitted and discharged from liability on account of this claim for compensation."

(3) That within 20 days after said above set out award was made appellee gave notice to the adverse parties and to the Industrial Accident Board that it did not consent to and was not willing to abide by said award, and within 20 days thereafter filed this suit to set same aside.

The above facts are epitomized by appellee in its brief as follows:

"The case was tried on an agreed statement. The salient facts may be summarized as follows:

"(1) Pete Sanders was killed on December 29, 1919.

"(2) He left a surviving wife, Minnie Sanders, who, at the time of his death, was expectant.

"(...