Reid v. Associated Employers Lloyds, 14414.

Citation164 S.W.2d 584
Decision Date04 September 1942
Docket NumberNo. 14414.,14414.
PartiesREID v. ASSOCIATED EMPLOYERS LLOYDS.
CourtCourt of Appeals of Texas

Appeal from District Court, Wichita County; Ernest Robertson, Judge.

Suit under the Workmen's Compensation Act by W. L. Reid to set aside an award of the Industrial Accident Board in favor of the Associated Employers Lloyds. From a judgment notwithstanding the verdict, the plaintiff appeals.

Judgment reversed, and cause remanded to the trial court with instructions to render judgment on the verdict.

Eugene Sherrod, Jr., of Wichita Falls, for appellant.

Bullington, Humphrey & Humphrey, of Wichita Falls, for appellee.

McDONALD, Chief Justice.

This is a compensation suit. The pleadings and proof establish that plaintiff had for a considerable period of time been employed as a truck driver for a concern handling fruits, vegetables and other food products. Plaintiff was injured while unloading a keg of beer. By testimony offered by defendant, which is undisputed, it is shown that plaintiff did not at any time material herein have a health certificate, such as is required by what is commonly referred to as Art. 705c of Vernon's Annotated Penal Code. Plaintiff appeals from a judgment non obstante veredicto, rendered apparently upon the theory that an instructed verdict should have been granted because of the undisputed proof that plaintiff did not have the health certificate required under the circumstances mentioned.

In Rogers v. Traders & General Ins. Co., 135 Tex. 149, 139 S.W.2d 784, 128 A.L.R. 1305, it was held that the employee, due to his failure to have a health certificate, was not an employee within the purview of the Workmen's Compensation Act, and was therefore not entitled to compensation. A writ of error was refused by the Supreme Court in another case where a somewhat similar holding was made by this court. Fort Worth Lloyds v. Roberts, Tex. Civ.App., 154 S.W.2d 882.

Plaintiff urges that defendant is not entitled to assert the defense established by the holdings mentioned, on the ground that defendant did not plead the illegality involved. Our new Texas Rule of Procedure No. 94 provides in part:

"Rule 94. Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. * * *"

Defendant's pleadings contain no allegations directly referring to the lack of a health certificate. Defendant contends, however, that the issue relating thereto is raised by the allegation contained in its answer to the effect that: "* * * plaintiff at the time he claims to have received the injury sued upon, was not an employee of Ben E. Keith Company, as contemplated and provided under the compensation laws of this state."

The Rogers case, supra, was decided by this court. Traders & General Insurance Co. v. Rogers, Tex.Civ.App., 119 S.W.2d 679. We have again examined the record in that case, and find that the employee there contended that the insurer had not raised the issue relating to the health certificate in its pleadings. In the opinion of the Commission of Appeals, adopted by the Supreme Court, 139 S.W.2d at page 785, it is said:

"The only question presented for decision is whether or not Rogers was an employee of the bakery within the purview of the definition of that term as contained in the Workmen's Compensation Law."

In Galloway v. Lumbermen's Indemnity Exchange, Tex.Com.App., 238 S.W. 646, it was held that the insurer could, without special pleading of the fact of illegal employment, defend on the ground that the employment of a minor was invalid under the law then in force.

In Montgomery Ward & Co. v. Lusk,...

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    ....... .          Reid v. Associated Employers Lloyds, 164 S.W.2d 584, 585 ......
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    ...the opportunity of knowing what character of proof he may need to meet the defenses pleaded." Reid v. Associated Employers Lloyds, 164 S.W.2d 584, 585 (Tex.Civ.App.--Fort Worth 1942, writ ref'd); see also Davis v. City of San Antonio, 752 S.W.2d 518, 519 (Tex.1988).9 The fact that the claim......
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    ...plaintiff the opportunity of knowing what character of proof he may need to meet the defenses pleaded. * * *' Reid v. Associated Employers Lloyds, 164 S.W.2d 584 (Tex.Civ.App.1942). Appellant's second point 'THE DISTRICT COURT ERRED IN AWARDING THE PLAINTIFF ANY DAMAGES IN EXCESS OF THE LIM......
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