Sheek v. Texas Co.

• Decision Date: 20 May 1926
• Docket Number: (No. 1718.)
• Citation: 286 S.W. 336
• Parties: SHEEK v. TEXAS CO.
• Court: Texas Court of Appeals

286 S.W. 336

SHEEK v. TEXAS CO.

(No. 1718.)

Court of Civil Appeals of Texas. El Paso.

May 20, 1926.

Rehearing Denied June 10, 1926.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Action by C. O. Sheek against the Texas Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Houtchens & Clark, of Fort Worth, and T. Edgar Johnson and Chas. H. Clark, both of Breckenridge, for appellant.

Lawther, Pope, Leachman & Lawther, of Dallas, H. S. Garrett, of Fort Worth, and G. O. Bateman, of Breckenridge, for appellee.

HIGGINS, J.

This suit was brought by Sheek against the Texas Company to recover damages, actual and exemplary, alleged to have been caused by personal injuries sustained by the plaintiff in the course of his employment by defendant, through the gross negligence of the latter. The plaintiff was an employee of defendant at what was known as its Lauderdale camp near Parks, in Stephens county. The plaintiff was working in the construction of an electric line. While so engaged he was badly injured by an explosion of dynamite which was being used in excavating an anchor hole.

The case was submitted upon numerous special issues not necessary to detail. It is sufficient to say that the findings upon the issue of actual damages establish the plaintiff's right, at common law, to recovery in the sum of $10,000. Upon the issue of exemplary damages the findings are conflicting. Upon other findings and undisputed facts the court rendered judgment for the defendant.

The defendant was a subscriber under the Workmen's Compensation Act (Acts 33d Leg. [1913] c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), carrying a policy of insurance issued by the Texas Employers' Insurance Association. The undisputed evidence shows, and in response to the first issue submitted, the jury found, that defendant served plaintiff with written notice at the time he was employed, that it carried compensation insurance with said association.

It is not claimed that Sheek reserved his right of action at common law as permitted by the act. In bar of the action the defendant pleaded and proved its subscription under the Compensation Act; also pleaded and proved without contradiction that the association acknowledged its liability to Sheek; that such association had paid his medical, hospital, and other incidental expenses, amounting in the aggregate to a large sum, also weekly compensation; that the plaintiff's claim under the act was presented to the accident board; that he in person appeared before the board in support of his claim; that the board entered its order finding him to be totally and permanently incapacitated and allowed compensation at the rate of $15 per week for 400 weeks; allowed a lump sum settlement in the sum of $5,150 after allowing credit for weekly payments theretofore made, which sum was paid to his attorney, who accounted therefor to the plaintiff. The defendant set up fraud and undue influence and other matters in avoidance of his claim under the act and acceptance of the benefit thereof, but under the view which we have of the matter such claim and acceptance of benefits are immaterial, for, if the defendant was a subscriber under the act and the plaintiff an employee covered by the policy of insurance, this of itself was a complete defense to the present action.

The appellant contends that he was not such an employee because:

(1) The policy did not cover employees of the defendant at its camp in Stephens county.

(2) It did not cover an employee doing the work in which he was engaged (construction of an electric line) at the time he was injured.

The provisions of the policy pertinent to this inquiry are as follows:

Subject to the conditions printed upon the back and other provisions, agreements and conditions indorsed thereon or added thereto the "Insuring Agreement" upon the face of the policy was:

"(1) To furnish, or cause to be furnished, the medical aid, hospital services and medicines, and to pay such claims for compensation, as are duly established under the provisions of chapter 179, Acts of 1913, state of Texas (herein called the Compensation Law), and/or any amendments thereof, on account of bodily injuries and/or death, accidentally suffered or alleged to have been suffered, while this policy is in force by any employé or employés of the subscriber.

"(2) To investigate and pay the loss and/or expense arising or resulting from claims upon the subscriber for damages, actual or exemplary, on account of bodily injuries and/or death accidentally suffered, or alleged to have been suffered while this policy is in force by any employé or employés of the subscriber."

Under "General Agreements" on the back:

"(9) The premium is based upon the entire earnings during the period of insurance of all employés of the subscriber anywhere in the state of Texas, or in any other state if hired in the state of Texas, in whatsoever work employed, independently of the sufficiency or otherwise of the classifications and rates contained in declaration 5 of the schedule of statements following. * * *

"(a) * * *

"(b) Classifications and Rates. The classifications and rates in declaration 5 of the schedule of statements following are subject to adjustment in accordance with the rules, classifications, and rates contained in the compensation manual filed by the association with, and approved by, the insurance department of Texas, independently of the sufficiency of such classifications and rates in its application to the work done or in process of being done.

"(c) If work is done by the subscriber which is not comprised in the description of...