Producers' Oil Co. v. Daniels

• Decision Date: 27 October 1917
• Docket Number: (No. 8715.)
• Citation: 249 S.W. 308
• Parties: PRODUCERS' OIL CO. v. DANIELS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 308

249 S.W. 308

PRODUCERS' OIL CO. v. DANIELS.^*

(No. 8715.)

Court of Civil Appeals of Texas. Fort Worth.

October 27, 1917.

On Motion for Rehearing December 9, 1922.

Rehearing Denied January 20, 1923.

Appeal from District Court, Clay County; Wm. N. Bonner, Judge.

Action by Clyde Daniels against the Producers' Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed on rehearing.

Conforming to Supreme Court's answers to certified questions, 244 S. W. 117.

Kay & Akin, of Wichita Falls, and Harry P. Lawther, of Dallas, for appellant.

Taylor, Allen & Taylor and Wantland & Parrish, all of Henrietta, for appellee.

BUCK, J.

This is an appeal from a judgment in the sum of $600, on a jury verdict in favor of appellee against appellant. Plaintiff alleged, in substance, that he was in the employment of defendant, working on an oil well, in September, 1916, near Petrolia, in Clay county; that in the performance of his duties he climbed on a derrick platform, and, in attempting to descend therefrom, he took hold of a round of the ladder, which, being weak and defective, broke and caused him to fall from 18 to 20 feet; that he weighed 237 pounds and fell with great force across a piece of timber, and suffered certain described injuries.

Defendant filed a so-termed plea in abatement, alleging that, at the time plaintiff's injuries were alleged to have occurred, and at all times during said employment, the defendant had provided for payment of compensation for personal injuries to its employees under chapter 179 of the Acts of 1913 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz), and that, before plaintiff was employed and before he was injured, defendant had complied with all the requirements of the law above mentioned, and had in all things provided for the indemnity provided in said law, and defendant had contracted with the Texas Employers' Insurance Association for the payment of indemnity, as provided by law, to such of its employees as should suffer personal injuries, and for which said association would be liable; that these facts were well known to plaintiff at the time of his employment and that defendant had given notice in writing, as required by law, to the plaintiff to the effect that this defendant had provided for payment for compensation to its employees for injuries under said act; that, immediately after said alleged injuries and within the time required by law, this defendant gave notice in writing to the State Industrial Board, through and to its proper officers, informing said Board of the date and nature of said accident, and the circumstances under which it had happened, as far as known to defendant, and in all things complied with the law as to giving notice to said Board and to the Texas Employers' Insurance Association. Wherefore defendant prayed that the court hear proof upon its plea in abatement, and that, upon hearing, it be sustained and the cause dismissed as to plaintiff.

The court declined to dispose of the plea in abatement before hearing evidence on the merits, but did submit to the jury the two issues, to wit:

(1) "Did the defendant company give the notice provided for in the law in writing or print to the plaintiff prior to the alleged injuries?"

(2) "Did the plaintiff know at any time prior to his injury that the defendant company had contracted with the Texas Employers' Insurance Association for the payment of indemnity as provided by law to such of its employees as should suffer death or personal injury?"

The court instructed the jury that, if they should answer either of these special issues in the affirmative, their foreman should sign his name to the verdict and return it into court without considering the further charge given and other issues submitted; but that, if they should answer the foregoing special issues in the negative, they should refer to and answer the issues thereinafter submitted. The jury answered both of the issues submitted under the plea in abatement in the negative, and they proceeded to consider and answer further issues submitted on the merits of the case, which answers were favorable to plaintiff and formed the basis for the judgment rendered.

We do not think there was any error in the refusal of the court, under the circumstances related, to consider first and separately the defendant's plea in abatement before the submission of the evidence on the merits of the case; but that the course of the trial judge, in requiring of the jury a finding as to the facts upon which the plea in abatement was predicated before they considered further facts to be submitted, was a substantial compliance with the requirements of article 1947, V. S. Texas Civil Statutes. Holstein v. Gardner, 16 Tex. 115; Breen v. T. & P. R. R. Co., 44 Tex. 302. It rests in judicial discretion to permit a plea in abatement, which is to be determined after hearing the evidence in support thereof, to be tried as a separate issue before a trial on the merits. Tynburg & Co. v. Cohen, 67 Tex. 220, 2 S. W. 734; Id., 76 Tex. 409, 13 S. W. 315. Chief Justice Graham of the Amarillo Court of Appeals in P. & N. T. R. Co. v. Thompson, 140 S. W. 1148, discusses the question here involved in the light of rule 24 (67 S. W. xxii) for the district and county courts, and says:

"It often occurs that the same testimony is necessarily heard on some branch of the main case as would be introduced in support of the motion, and in such case a useless consumption of the time of the court would result if required to dispose of such motion before proceeding with the case on its merits; and to give the rule such a construction in such a case would thwart the very purpose of the rules — that of expediting the business of the courts. * * * We think a proper construction of rule 24 does not require that the trial court in all cases dispose of such motions before hearing evidence on the issues in the main case; but we do think that rule 24 requires the motion to be disposed of before disposing of the main case. Believing that it was within the sound discretion of the court below to proceed with the trial as he did, and appellants having failed to show affirmatively to our satisfaction that the trial court improperly exercised its discretion, and that appellants suffered injury thereby, we overrule the third assignment of error."

We think in this case, as found in the last-cited case, that at least no injury has been shown as a result of the action of the court in the respect complained of. Moreover, this was properly a plea in bar, so far as the defendant was concerned, rather than a plea in abatement. For if the defendant had established the truth of its allegations to the effect that it was a subscriber to the Texas Employers' Insurance Association, and had given notice to the plaintiff, prior to his employment, that it was such a subscriber, and had given notice to the Industrial Accident Board, as required by article 5246qqq, then plaintiff would have had no cause of action against his employer, which the evidence shows was a subscriber, but his right of action would have been against the Texas Employers' Insurance Association. Article 5246i, V. S. Texas Civil Statutes. Therefore, defendant's so-called plea in abatement presented a state of facts which, if true, would have been a complete defense to plaintiff's suit.

The "distinction between a plea in abatement and a plea in bar is that the former must not only point out the plaintiff's error, but must show him how it may be corrected; so as to avoid the same mistake in another suit, for the same cause of action. * * * A plea in bar, unlike a plea in abatement, offers matter which is a conclusive answer or defense, to the action upon the merits." Tinnin v. Weatherford, Dall. Dig. 590.

Therefore we overrule appellant's first assignment.

The second assignment is directed to the failure of the court to give a peremptory instruction for the defendant, on the ground that the undisputed proof showed that at least upon two occasions the plaintiff had executed a written acknowledgment and receipt of a copy of defendant's notice to the effect that it had provided for compensation under the Employers' Liability Act. The evidence does show that on two separate occasions, to wit, on April 8, 1915, and on December 1, 1915, plaintiff below did sign the following acknowledgment:

"I acknowledge receipt of my copy of the above notice * * * and agree in case of injury to accept compensation under above law, and waive all action for damages."

On the same sheet of paper and above this acknowledgment was printed the following:

"C257 15 44 Notice. As required by chapter 179, of the Acts of 1913, of the Legislature of the state of Texas, entitled: `An act relating to employers' liability and providing for the compensation of certain employees and their representatives and beneficiaries, for personal injuries sustained in the course of employment, and for death resulting from such injuries,' etc.

"This will give you notice that Producers' Oil Company has provided for payment of compensation for such injuries to its employees under said act with the `association' as provided in said act. (This notice is given in duplicate, one copy to be retained by employee; the other copy must be dated and signed by employee and returned to the legal department at Houston, Texas.)

                             "Producers' Oil Company
                               "By R. E. Brooks, President."
                

Plaintiff below acknowledged, upon cross-examination, that he signed both of these receipts of notice, but he further testified that at the time he signed them he did not know the purport of the instrument he was signing. He testified:

"Yes, as I told the jury a while ago, I did not think I had signed but one of these papers, but I see my signature signed by me to the other one. I do not recollect them giving me copies of these papers at the time I signed them. I see this notice says: `I...