Oilmen's Reciprocal Ass'n v. Gilleland

• Decision Date: 09 February 1927
• Docket Number: (No. 747-4689.)
• Citation: Oilmen's Reciprocal Ass'n v. Gilleland, 291 S.W. 197 (Tex. 1927)
• Parties: OILMEN'S RECIPROCAL ASS'N v. GILLELAND et al.
• Court: Texas Supreme Court

291 S.W. 197

OILMEN'S RECIPROCAL ASS'N v.GILLELAND et al.

(No. 747-4689.)

Commission of Appeals of Texas, Section B.

February 9, 1927.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by T. J. Gilleland and others against the Oilmen's Reciprocal Association.A judgment for plaintiffs was affirmed by the Court of Civil Appeals(285 S. W. 648), and defendant brings error.Judgments of District Court and Court of Civil Appeals reversed, and judgment rendered for plaintiff in error.

Carrigan, Britain, Morgan & King, of Wichita Falls, for plaintiff in error.

E. W. Napier, of Wichita Falls, for defendants in error.

POWELL, P. J.

In stating the nature and result of this case, the Court of Civil Appeals said:

"This case arose under the Workmen's Compensation Law of Texas, and grows out of the fact that Ed Gilleland, the son of the appellee, T. J. Gilleland was killed in an accident on December 23, 1924, while working as an employee of the City Laundry Company, a corporation of Wichita Falls, Tex.

"No question is made upon the pleadings, and the case is before us upon an agreed statement under V. S. C. S. art. 1949 (R. S., 2177).

"Compensation was denied the appellee Gilleland by the Industrial Accident Board, and, joined by his attorney, E. W. Napier, the appellee Gilleland appealed from the ruling of the accident board and sued in the district court of Wichita county, where judgment was rendered for plaintiffs for compensation at the rate of $20 per week for 360 weeks.

"The case is before us upon the single proposition of law, as follows: `The court erred in rendering judgment for the plaintiffsT. J. Gilleland and E. W. Napier against this defendant, for the reason that, under the undisputed facts presented to the court at the trial of this cause, the deceased, Ed Gilleland, was clearly not an employee within the meaning of the statutes of the state of Texas governing workmen's compensation cases, it appearing from the agreed statement of facts that at the time of the accident resulting in his death, the said Ed Gilleland was employed by City Laundry Company, the insured, as a bricklayer, to wall with brick a pit 16 feet deep, in which his employer was about to install a pump for the purpose of pumping water to its plant where it conducted a laundry business, engaged in the business of cleaning and pressing clothing, garments, and linens for the general public for compensation, from which it clearly appears that the employment of the said Ed Gilleland was not in the usual course of trade, business, profession, or occupation of said employer.'

"The issue for consideration here is whether Ed Gilleland was an employee, under the express term of the policy, as set out in the petition and under the statutes of Texas, defining that relation.Vernon's Ann. Civ. St. 1918, art. 5246 — 82(R. S. 1925, art. 8309, § 1, par. 3), define employee, in part, as follows: `Employé' shall mean every person in the service of another under any contract of hire, express or implied, oral or written, * * * except one whose employment is not in the usual course of trade, business, profession or occupation of his employer.'

"The policy which was issued by the appellant indemnity association to the laundry company was not made a part of the statement of facts.Plaintiffs allege that the laundry company held a policy issued by the defendant`insuring and indemnifying the said City Laundry Company against liability for injuries to its employees arising in the course of their employment.'

"The only reference to the policy in the statement of facts is in the recital that the City Laundry Company`held a policy of compensation insurance issued by the defendant, Oilmen's Reciprocal Association, insuring and indemnifying the said City Laundry Company against liability for injuries to its employees arising in the course of their employment, which said policy of insurance was in force on the date last above mentioned.'

"If we apply the rule that the policy is to be strictly construed against the insurer, then the judgment must be affirmed, because, according to the agreed statement of facts, Ed Gilleland, at the time of his death, had been employed by the laundry company to wall up a pit with brick, and while in the course of his employment and as the result of the side of the pit caving in he was buried under the sand and instantly killed.It will be observed that the terms of the policy did not limit the liability of the appellant to injuries suffered by an employee while he was working `in the usual course of trade, business, profession or occupation of his employer,' as is provided by the statute, but the liability arises under its terms if the injured party is an employee of the assured and is injured in the course of the workmen's employment.

"The case was tried as one arising under the Workmen's Compensation Act, and must be considered upon that theory in this court."

The Court of Civil Appeals summarizes the agreed statement of facts with reference to the death of Gilleland as follows:

"The record discloses that in carrying on its laundry business the assured obtained water from two or three wells operated by a small steam pump; that on account of an increase in the volume of its business the water supply from these wells became inadequate.On this account it caused two additional wells to be sunk, of such depth that it became necessary to install a larger and more powerful pumping equipment.For this purpose it had caused an excavation to be made near the two wells, which was about 16 feet deep, 18 feet long, and 6 feet wide; that to prevent the walls of the excavation from caving, it was necessary to line it with brick.Ed Gilleland was a bricklayer, and, at the time he was killed, had been employed by the laundry company, with other workmen, to build the brick wall.While engaged in lining the excavation with brick, one side caved in and buried the workmen under several tons of earth, causing Gilleland's immediate death."

The Court of Civil Appeals affirmed the judgment of the district court.See285 S. W. 648.That action was taken upon two grounds.In the first place, it was held that, in view of the wording of the policy of insurance as stated in the agreed statement of facts, the policy went beyond the law and did not require that the employee be engaged in the usual course of the employer's business.In the second place, the court indicated clearly that, if necessary, it would hold that this man was in the usual course of the laundry business when killed, and that, under the law, there was liability.

Upon this first point, it was shown upon motion for rehearing filed by appellant in the Court of Civil Appeals that the attorneys making up the agreed statement of facts had no intention to convey to the court the idea that the policy went beyond the provisions of the Compensation Act.And counsel for appellees in that court, in answering the motion for rehearing, said:

"Now come the appellees herein and by way of reply to the appellant's motion for rehearing respectfully say that it was not the intention of the parties to enlarge the scope of the term `employee' beyond that intended by the definition of that term as contained in the Employer's Liability Act, and the language used in the agreed state of facts, which is quoted by the court in its opinion in this case, and being as follows: `Insuring and indemnifying the said City Laundry Company against liability for injuries to its employees arising in the course of their employment' was inadvertently used by the parties without any intention of giving it the significance which the court has given it in the opinion herein rendered."

However, the Court of Civil Appeals overruled the motion for rehearing.In doing so, no opinion was written.But we cannot believe that court intended to override the last quotation, which showed the real agreement as to the statement of facts.Therefore we must assume that the Court of Civil Appeals intended, in the end, to base its affirmance of the judgment upon the second theory above mentioned by us.At the same time, even if we be mistaken in this assumption, then we are of the view that it is only reasonable to assume that lawyers, in agreeing to facts in a case of this kind, used words with reference to the Compensation Act.And, under this theory, we reach the conclusion that the word "employee" was used with reference to what constitutes one an employee under the terms of the law.Therefore we now come to a consideration of the holding by the Court of Civil Appeals that Gilleland, when killed, was in the usual course of his employer's business.This is the one and only question in this case, as shown by the briefs of all the attorneys.

The Court of Civil Appeals in this case, in giving a history of the clause in the statute now under consideration, speaks as follows:

"The Workmen's Compensation Act of Texas seems to have been fashioned very largely after the Massachusetts act.The original act in Massachusetts * * * in defining employee, excepted `one whose employment is but casual or is not in the usual course of trade, business, profession or occupation of his employer.'This definition was adopted when the Texas law was enacted.Vernon's Sayles' Civil Statutes, art. 5246yyy.Later, after the Massachusetts law had been amended * * * eliminating the words `but casual or is,' the Texas act in 1917 * * * was also amended so as to conform in this particular with the Massachusetts amendment.Vernon's Civil Statutes 1918, art. 5246 — 82.The effect of this amendment was to broaden and liberalize the scope of the act with reference to who should be classed as employees, and, as amended, one who is only casually employed is entitled to the benefits of the act if he is injured while in the usual course of the trade, business, profession, or occupation of his employer.R. S. art. 8309, § 1."

We...