Powers v. Standard Acc. Ins. Co.

• Citation: 188 S.W.2d 239
• Decision Date: 27 April 1945
• Docket Number: No. 13612.,13612.
• Parties: POWERS v. STANDARD ACC. INS. CO.
• Court: Texas Court of Appeals

188 S.W.2d 239

POWERS v. STANDARD ACC. INS. CO.

No. 13612.

Court of Civil Appeals of Texas. Dallas.

April 27, 1945.

Rehearing Denied May 25, 1945.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Suit under the Workmen's Compensation Act by Alvis Powers against Standard Accident Insurance Company to set aside an award denying compensation for total and permanent disability. From a judgment in favor of defendant, the plaintiff appeals.

Affirmed.

Vernis Fulmer, of Nacogdoches, and White & Yarborough, of Dallas, for appellant.

Touchstone, Wight, Gormley & Touchstone, of Dallas, for appellee.

BOND, Chief Justice.

This is a workman's compensation suit for total and permanent disabilities resulting to appellant, Alvis Powers. Appellee, Standard Accident Insurance Company, was the insurance carrier of Standard Paving Company, an Oklahoma corporation, Dewey Spencer, an individual d/b/a Spencer Construction Company, and Lee Harris, an individual, acting as joint-contractors and co-adventurers in name of Standard, Spencer & Harris. The policy of insurance specifically indemnified the insured for injuries to their employes in performance of labor under Workmen's Compensation Law in their contract with the United States War Department to construct an airfield and glider school for army planes at Dalhart, Texas. The contract was separable,—the Standard was to lay all concrete, Spencer Construction Company the grading, and Lee Harris the drainage. On May 27, 1942, Spencer Construction Company sublet a portion of its contract to Sitton & Herbert, a partnership composed of W. F. Sitton and R. C. Herbert of Nacogdoches, Texas. Under this subcontract, Sitton & Herbert were to do all of the work, furnish all materials, labor and requirements of every kind necessary to complete "approximately 200,000 c.y. excavation, at 45 cents per c.y.; 115,000 c.y. base course caliche, at $1.05 per c.y.", according to plans and specifications of the U. S. Army Engineers.

On the occasion in question, Alvis Powers was employed to take a truck belonging to Sitton & Herbert from Nacogdoches to Dalhart to be used in the construction of the army airport, and while en route he suffered an injury. The controlling issue, finding support in evidence, is whether, at the time of his injuries, Alvis Powers was an employe of Standard, Spencer & Harris, or an employe of Sitton & Herbert. Plaintiff alleges that on or about July 20, 1942, he was employed by and working for "Standard, Spencer & Harris, &/or Sitton & Herbert", and that while engaged in furtherance of the business of "Standard, Spencer & Harris, &/or Sitton & Herbert", and under orders and instructions of his employer, "Standard, Spencer & Harris, &/or Sitton & Herbert" and on the payroll of "Standard, Spencer & Harris, &/or Sitton & Herbert", he received total and permanent disabilities, for which he seeks judgment against the insurance carrier on its policy of indemnity.

The cause was tried to a jury, and on findings, material here, that at the time and on the occasion in question Alvis Powers was an employe of Sitton & Herbert, and that appellee, Standard Accident Insurance Company, did not issue and deliver to Sitton & Herbert a workman's compensation policy in full force and effect on the occasion in question, the trial court entered judgment in favor of the insurance carrier.

The appellant challenges the action of the trial court (1) in failing to declare a mistrial because of the failure of the jury to find in answer to special issues Nos. 2, 3 and 4, making inquiry as to whether Alvis Powers was an employe of and sustained injuries in course of his employment with Standard, Spencer & Harris; and (2) that a new trial should have been granted by the trial court in admitting over plaintiff's objections certain documentary evidence prejudicial to his cause.

It will be observed that plaintiff's pleadings abound in use of the phrase or symbol "&/or" in denominating his employer; manifestly leading to uncertainty, ambiguity and multiplicity. Because of its conjunctive-disjunctive form, courts, in dealing with the subject to which the symbol relates, must of necessity give it the interpretation applicable to subsequent disclosure of facts and circumstances to express the true intention of the pleader. If the pleader means the conjunctive, the word "and" should have been used, but if he means to express the disjunctive, he should have employed the word "or"; to use both "and" and "or" leads to uncertainty and confusion. The American Bar Association Journal, in commenting on the use of "and/ or", relates: "It is indicative of confused thought and should have no place in either a statute or legal document as `and/or' makes confusion worse confounded." In the case of Tarjan v. National Surety Company, 268 Ill.App. 232, the court said: "The use of this symbol arises in part from a doubt as to which of the two words should be used. Is it any solution of this doubt to leave the question to be solved by construction at a later time? We venture the assertion that any man who knows the meaning of the two words and the established distinctions in their use can take a modern contract or statute, bristling with this symbol, strike out every one of them and substitute the proper one of the two words, to the great clarification of the meaning of the instrument or act." See also State ex rel. Adler v. Douglas, 339 Mo. 187, 95 S.W.2d 1179; Compton v. State, 129 Tex.Cr.R. 648, 91 S.W.2d 732, condemning the use of the meaningless symbol. In submitting the case here to the jury, evidently the trial court interpreted plaintiff's meaning in light of the evidence in its disjunctive sense, thus submitting separate issues: (1) Nos. 2, 3 and 4,...