Norwich Union Indemnity Co. v. Wilson, 11024.

• Decision Date: 10 October 1931
• Docket Number: No. 11024.,11024.
• Citation: 43 S.W.2d 473
• Parties: NORWICH UNION INDEMNITY CO. et al. v. WILSON et al.*
• Court: Texas Court of Appeals

43 S.W.2d 473

NORWICH UNION INDEMNITY CO. et al. v. WILSON et al.*

No. 11024.

Court of Civil Appeals of Texas. Dallas.

October 10, 1931.

Rehearing Denied November 14, 1931.

Appeal from District Court, Dallas County; W. M. Taylor, Judge.

Suit by R. L. Wilson and another against the Norwich Union Indemnity Company to set aside a decision of the Industrial Accident Board, in which the Globe Indemnity Company intervened. From a judgment for plaintiffs, the defendant and intervener appeal.

Affirmed.

Geo. O. Wilson, W. H. Flippen, and John T. Gano, all of Dallas, for appellants.

White & Garborough, of Dallas, for appellee.

VAUGHAN, J.

For convenience, the parties involved in this appeal will be designated herein as follows: Norwich Union Indemnity Company, appellant; Globe Indemnity Company, intervener; R. L. Wilson, appellee; White & Yarborough, attorneys. This is the second appeal of this case. See Norwich Union Indemnity Co. v. Wilson et al. (Tex. Civ. App.) 17 S.W.(2d) 68.

Appellee filed his suit in the court below on December 29, 1925, to set aside the final ruling and decision of the Industrial Accident Board of Texas, denying his claim for compensation under the Texas compensation statute, alleging that he sustained personal injuries at Florence, Ala., on October 24, 1924, while in the service of Uvalde Paving Company, a Texas corporation, with its home office in Dallas, Tex.; that he suffered total and permanent incapacity from such injuries; that appellant was the insurer of his employer under the Texas Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309); that he was employed in Texas by Uvalde Paving Company and sent by said company to Alabama temporarily to work; that prior to and at the date of his injuries, he was a citizen of Texas; that his average weekly wages was the sum of $42; that he gave notice of his injuries within thirty days after sustaining same, and filed claim for compensation therefor within less than six months; and in the alternative alleged that, if the court found he did not file his claim within six months after sustaining his injuries, then he filed said claim within six months after he was physically able to do so, alleging that he was physically incapacitated to file such claim for seven and one-half months following the injuries on October 24, 1924. Appellee further alleged facts to show that he had a meritorious case and that he had good cause for failure, if any, to file his claim for compensation with the Industrial Accident Board within six months after sustaining his injuries. Appellee gave notice of appeal from the board's award within thirty days after the rendition thereof and filed suit to set aside said award within twenty days after giving notice of appeal. Appellant, by proper answer, contended that appellee was injured in the state of Alabama, therefore was not covered by the Workmen's Compensation Act of Texas; further, that he did not file his claim for compensation within six months after the date he received his injuries and that he was not physically incapacitated to file said claim, as alleged, and that he did not file his claim for compensation within six months after he was physically able to do so.

Intervener, under leave, filed its plea of intervention in the trial court on March 25, 1927, alleging that prior to and at the time appellee was injured it carried a policy of workmen's compensation insurance upon the Alabama employees of the Uvalde Paving Company; that it had paid compensation to appellee and money for hospital bills in his behalf, aggregating the sum of $928, in good faith, under the mistaken belief that it carried a policy of insurance covering appellee at the time of his injuries. Intervener asked judgment against appellant and appellee for said sum of $928 and interest thereon from the date said money was expended by it in the event appellee should recover against appellant.

Appellant answered said plea of intervention with general demurrer and general denial. Appellee filed a plea in abatement to said intervention: this plea, however, was not presented to the court. The following findings of fact were made by the jury in answer to some of the special issues submitted by the court, viz: That plaintiff sustained accidental injuries on October 24, 1924, while working for the Uvalde Paving Company as an employee; that said injuries were sustained in the course of his employment with said paving company; that plaintiff sustained total incapacity on October 24, 1924; that said incapacity was a natural result of said injuries; that such total incapacity was permanent; that payment of compensation to plaintiff by defendant in weekly installments instead of a lump sum will work a hardship and injustice to plaintiff; that $41.11 was the average weekly wage of plaintiff at the time of his injuries; that he was employed by the Uvalde Paving Company in 1924 in Texas, and sent by such employer during that year, prior to October 24, 1924, temporarily to the state of Alabama to work; that plaintiff was physically incapacitated by said injuries to file claim for compensation; that said physical incapacity continued from the date of his injuries for thirty-two weeks and three days; that plaintiff filed his claim for compensation with the Industrial Accident Board of Texas within six months after his physical incapacity to file claim ended; that the Uvalde Paving Company received notice of plaintiff's said injuries within thirty days after date same were received.

On this verdict judgment was rendered December 8, 1930, in favor of appellee against appellant, for the sum of $8,931, with interest thereon from date at the rate of 6 per cent. per annum, said amount being apportioned as follows: $5,904 to appellee and $2,977 to attorneys; that the intervener take nothing by reason of its intervention; that all costs incurred be adjudged against appellant. From which Norwich Union Indemnity Company and Globe Indemnity Company, respectively, duly prosecuted an appeal and by appropriate assignments of error said judgment and proceedings leading up thereto are before us for review and revision. Findings of the jury, being sufficiently supported by evidence to sustain same, are binding upon and are therefore adopted by this court as its findings of facts.

By its assignments of error, Nos. 3, 4, and 5, appellant contends that the trial court committed fundamental error in allowing intervener to file and prosecute its plea of intervention herein against appellant or against the appellee in this cause, this notwithstanding that the only part intervener took in the trial of said cause was to read to the jury its plea of intervention, being substantially herein set forth, and by assignments Nos. 91, 92, and 93 complained of the action of the trial court in permitting counsel for intervener to read its plea of intervention to the jury.

The record discloses that appellant did not attack said plea of intervention by plea in abatement; that counsel for intervener took no part in the case, other than to read said plea to the jury; that the court qualified the bill of exceptions taken on account of the reading of said plea of intervention, as follows: "Let the bill show the qualification that the defendant, Norwich Union Indemnity Company, filed no plea in abatement seeking to eliminate the Globe Indemnity Company from the case; there was no objection offered to the reading of the plea of intervention by counsel for the Globe Indemnity Company until after said pleading had been read to the jury by the attorney for Globe Indemnity Company."

Furthermore, in paragraph 75 of appellant's third amended original answer covering more than two pages, which was read to the jury, the same matters contained in said plea of intervention were alleged in detail. Therefore the reading of said plea of intervention to the jury was harmless and presents no reversible error, as the reading of said plea did not apprise the jurors of anything of which they had not theretofore been informed by the reading of appellant's answer. Said assignments are therefore overruled.

By its assignments of errors Nos. 12, 13, and 16, appellant contends that the trial court committed material error in overruling its pleas in abatement Nos. 7 and 8, and that the verdict of the jury and judgment of the court are contrary to law, because appellee had not the legal right to maintain his suit against appellant at the time of the filing of said pleas in abatement, nor did he have the right to file the same in the trial court at the time same was filed, for the reason that said court had no jurisdiction over appellee's cause of action, if any he had, "in that the employer's Liability Act of the State of Texas provided at the time of the accrual of the plaintiff's cause of action, if any he has, and at the time of the institution of this suit, that plaintiff appealing from the final ruling, decision and award of the Industrial Accident Board of the State of Texas, shall file suit in some court of competent jurisdiction and in the county in which the injury occurred, and at the time of the receipt of plaintiff's injuries, as complained of, and at the time of the filing of suit in this honorable court by plaintiff against this defendant, and at the time of the accrual of his cause of action, if any he had or has now, the provision of the Employer's Liability Act of the State of Texas were limited in their scope and involved, and provided for only injuries occurring within the State of Texas; that it was not extra-territorial in its scope."

Section 19 of art. 8306, R. C. S. 1925, provides: "If an employee who has been hired in this State sustained injury in the course of his employment he shall be entitled to compensation according to the law of this State, even though such injury was received outside of the State."

The proof established the following facts: That appellant was employed in the ...