New Amsterdam Casualty Co. v. Harrington

• Decision Date: 13 October 1928
• Docket Number: (No. 11998.)
• Parties: NEW AMSTERDAM CASUALTY CO. v. HARRINGTON.
• Court: Texas Court of Appeals

11 S.W.2d 533

NEW AMSTERDAM CASUALTY CO. v. HARRINGTON.

(No. 11998.)

Court of Civil Appeals of Texas. Fort Worth.

October 13, 1928.

Rehearing Denied November 24, 1928.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by the New Amsterdam Casualty Company against C. F. Harrington to set aside an award of the Industrial Accident Board under the Workmen's Compensation Act in favor of defendant. Judgment for defendant, and plaintiff appeals. Reformed and affirmed.

See, also, 283 S. W. 261; 297 S. W. 307.

Taylor, Muse & Taylor, of Wichita Falls, and E. G. Senter, of Dallas, for appellant.

Davenport & Crain, of Wichita Falls, and W. L. Scott, of Olney (R. Wayne Frank, of Wichita Falls, of counsel), for appellee.

DUNKLIN, J.

While engaged in the course of his employment in drilling an oil well, C. F. Harrington sustained injuries. The Industrial Accident Board allowed him compensation for those injuries, to be paid by the New Amsterdam Casualty Company under a policy issued by that company in the name of Dr. L. F. Gragg, as employer of Harrington for work on the lease. An appeal was prosecuted from that award by the insurance company to the district court, and a trial of the issues there made by Harrington and the insurance company resulted in a judgment in favor of Harrington, which was later reversed by our Supreme Court, as shown in 290 S. W. 726, to which reference is made for further details of the facts and pleadings of the parties. Upon a second trial in the district court, Harrington again recovered, and this appeal has been prosecuted by the insurance company from that judgment.

In the opinion on the former appeal (290 S. W. 726) it was said: "The uncontradicted evidence shows that Harrington was injured in the course of his employment while working on said Benson lease for a copartnership, composed of Gragg, Butler, Lynch, and others, whose names are not disclosed. The distinguishing name of the copartnership, if any, was not definitely shown by the evidence."

The statement there made applies also to the evidence introduced upon the last trial. It was further pointed out in the former opinion that the insurance policy sued on gives the name of the employer as Dr. L. P. Gragg, described therein as an individual, and that, in the notice given by the insurance company to the Industrial Accident Board of the issuance of the policy, the employer was designated as "Dr. L. F. Gragg (firm name under which business is conducted at Olney, Texas)." It is further pointed out that, in the notice given by Harrington to the Industrial Accident Board of his injuries, it is stated that he sustained his injuries "while in the employ of Butler, Gragg, and Lynch, employers." The former judgment was reversed because of the absence of any allegation in Harrington's pleading to support a recovery, based on his employment by the partnership firm; the allegations in the petition upon which he went to trial being that he sustained his injuries while working as an employee of L. F. Gragg.

The last trial was upon an amended pleading by Harrington, in which it was alleged, in substance, that he sustained his injuries while working as an employee of a partnership firm composed of Dr. L. F. Gragg and his associates, including Butler, Lynch, and others unknown to the pleader, which fact was known to the insurance company through its duly authorized agent before the policy was issued, and that it was the intention of the parties to, insure the employees of that firm; the policy being issued in the name of L. F. Gragg only, as a matter of convenience and as a designation of the firm name.

We overrule all assignments of error addressed to the admission of evidence to support those allegations, and to the finding of the jury sustaining them, and to the judgment based thereon. In general terms, the ground upon which those assignments are predicated is the absence of any pleading or evidence to show mutual mistake, fraud, or accident. The alleged understanding and intention of the parties was not stipulated in the policy. It is our conclusion that it was not necessary to reform the wording of the policy in the respect noted, in order to admit proof of the real intention and understanding of the parties thereto. The proof introduced to show that before the issuance of the policy the insurance company knew that Harrington was working for the partnership firm composed of Gragg and his associates, and that it was the intention of the insurer to insure all employees of that firm, related merely to the identity of the employer, which, according to the finding of the jury, was known to the insurer as the partnership firm. Unquestionably, the insurance company intended that the policy which it issued should cover injuries sustained by the employees of the insured, which, according to the evidence and findings of the jury, it knew was a partnership composed of Gragg and his associates. See 2 Elliott on Contracts, § 1664; 1 Williston on Contracts, § 302; 3 Williston on Contracts, § 1599; McCord-Collins Co. v. Pritchard, 37 Tex. Civ. App. 418, 84 S. W. 388, writ of error refused; Security Casualty Co. v. Hunt (Tex. Civ. App.) 294 S. W. 695.

Appellant, among other defenses, specially pleaded the provision in the policy that none of its provisions could be waived or altered except by indorsement thereon signed by the president, or vice president, or secretary, or his assistant, and that notice to any other agent of any fact should not effect a waiver or change in any part of the contract. That defense was not available, since the proof conclusively showed that Cravens, Dargen & Co. were the general agents of the insurer, and that they represented the company in the negotiations with Dr. Gragg, and, with full notice of all the facts found by the jury, delivered the policy and collected for the insurer the premiums thereon. L. & L. & Globe Ins. Co. v. Ende, 65 Tex. 118; Wagner v. Westchester Fire Ins. Co., 92 Tex. 549, 50 S. W. 569; St. Paul Fire Ins. Co. v. Kitchen (Tex. Com. App.) 271 S. W. 893; Am. Central Ins. Co. v. Buchanan-Vaughan Auto Co. (Tex. Com. App.) 271 S. W. 895.

Error is assigned to the refusal of the trial court to submit to the jury the following special issue: "Was Harrington working, at the time of the injury, under an agreement which provided that he should receive as part compensation for his labor an interest in the well or in the oil lease upon which he was at work?" It is contended that, if Harrington was working under such an agreement, then he was a partner with Gragg and others in the enterprise, and therefore was not an employee, within the meaning of the provisions of the Workmen's Compensation Law (Rev. St. 1925, arts. 8306-8309).

The evidence pointed out and relied on to support that contention consists chiefly of a statement in writing signed by Harrington, which, after reciting his employment by Dr. Gragg to work on the Benson lease, concludes as follows: "I made a deal with him to give me half pay and the other half of my pay was to be an interest in the lease; we had a contract to that effect, which I signed; he paid me for the work I did at $4 per day, and I still have an interest in the lease; he has sold the lease since, settled with some of the boys, and others he has not settled with. This contract was made with Dr. Gragg about the 1st of April, 1923."

If it be true that the ownership by Harrington of an interest in the lease, which is real property, would in law make him a partner, then the evidence must be sufficient to show a legal conveyance of such interest, or else a contract for such interest specifically enforceable in a court of equity. The evidence quoted was too uncertain and indefinite to establish title to any interest whatever in the lease. It fails to fix the extent of interest which Harrington was to receive from Gragg, and fails to give any data from which the same could be determined. And the issue which appellant requested the court to submit to the jury was likewise objectionable for lack of clarity, and, for that reason alone, was properly refused by the trial court. Furthermore, it is fairly deducible from the evidence that the agreement, if any, of Gragg to convey to Harrington an interest in the lease was insufficient to prove a partnership, because it was dependent on future contingencies, such as are noted in the decisions of Millers' Indemnity Underwriters v. Patten, 238 S. W. 240, by the Court of Civil Appeals, and affirmed by our Supreme Court in 250 S. W. 154; Cudahy Co. v. Hibou, 92 Miss. 234, 46 So. 73, 18 L. R. A. (N. S.) 975.

There was no error in permitting Cooper, the local agent of appellant, to testify to the contents of a letter he wrote to appellant's general agents before the policy was issued, and along with Gragg's application for the policy, telling them, in substance, that the policy was to be issued to Gragg for the use and benefit of him and others who were jointly interested with him in the lease and its development. Possession of the original by the general agents was the possession of appellant, and the notice given by appellant to the Accident Board of the issuance of the policy showed that it was issued to the partnership firm, proving conclusively that it had received the letter written by Cooper, to which the objection was made; no evidence to the contrary being offered. And for the same reason the court did not err in overruling appellant's motion for a continuance on the ground of surprise by the admission of such testimony of Cooper. See, also, M., K. & T. Ry. Co. v. Johnson (Tex. Civ. App.) 193 S. W. 728, and authorities there cited; McCown v. Schrimpf, 21 Tex. 22, 73 Am. Dec. 221; Allen v. Traylor (Tex. Com. App.) 212 S. W. 945; U. S. Co. v. Liner (Tex. Civ. App.) 300 S. W. 641.

The following are special issues submitted to the jury and their findings thereon:

"(1) Did the plaintiff, New...