Silurian Oil Co. v. White

• Decision Date: 16 May 1923
• Docket Number: (No. 2133.)
• Citation: 252 S.W. 569
• Parties: SILURIAN OIL CO. v. WHITE.
• Court: Texas Court of Appeals

252 S.W. 569

SILURIAN OIL CO. v. WHITE.

(No. 2133.)

Court of Civil Appeals of Texas. Amarillo.

May 16, 1923.

Rehearing Denied June 6, 1923.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by J. M. White against the Silurian Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Kay, Akin & Kenley, of Wichita Falls, and Capps, Cantey, Hanger & Short, of Fort Worth, for appellant.

Bonner, Bonner & Sanford, of Wichita Falls, for appellee.

HALL, C. J.

Following is the statement of the nature and result of the suit by appellant, concurred in by appellee:

"This suit was brought by J. M. White, father of a minor son, James Byron White, by petition filed in May, 1921, against the Silurian Oil Company, a corporation, and Thos. Morrisy. Morrisy was dropped out of the case. It is a suit by a parent for loss and damages on account of wages and support by the minor. The minor, James Byron White, left his father's home in Eastland county, Tex., came to Wichita Falls, and obtained employment with the Silurian Oil Company, and suffered serious injury to his head while working for the company in its power plant. The defendant company answered by special plea in bar, setting up that it was a subscriber (under the Workmen's Compensation Act), and had insurance for the benefit of its employees, and that James Byron White, the boy who was injured, had obtained a judgment or an award from the Industrial Accident Board, for $6,015, payable in installments, which the defendant was paying, but that the defendant had further paid other large sums for medical treatment, hospital fees, etc., and that the law, commonly called the Workmen's Compensation Act, superseded all former laws giving the parents the right to sue. This special plea in bar was overruled by the court. The case then coming on to be heard upon its merits, without the intervention of a jury, the court found for the plaintiff, J. M. White, for $1,900, which was, upon motion for new trial, reduced to $1,300."

There is no statement of facts in the record.

Under the first three propositions it is insisted: (1) That, where a minor was injured in the course of his employment and has been awarded the highest possible compensation under the law by the Industrial Accident Board, such award took away the right of the parent to sue; (2) that the Workmen's Compensation Law of Texas (Vernon's Ann. Civ. St. Supp. 1918, art. 5246—1 to 5246—97, was intended to be complete in itself and contemplated that any former remedy of parents should be merged in it; (3) that the special plea in bar, setting up the award and settlement under the Workmen's Compensation Act, was a complete defense, and the court erred in overruling it.

The substance of the court's finding is that James Byron White went to Wichita Falls when about 18 years of age to visit his brother residing there, and, without the knowledge and consent of his parents, procured employment from the defendant, Silurian Oil Company, working in the casing head gas manufacturing plant of the defendant company as oiler and wiper of machinery, and while so engaged was injured through the negligence of the defendant company and its employees; that the plaintiff thereafter took his son home and has expended in the way of medicines, etc., in treating him, the sum of $100, for which he has not been repaid by the defendant or any one; that the services of James Byron White were reasonably worth to plaintiff $75 per month, and would have been worth this sum for the remaining two years of his minority, and, because of the injuries sustained, plaintiff will be totally deprived of his services during that period; that plaintiff would have ordinarily expended $25 per month as expenses in the way of board, clothing, and maintenance of his son, and the court fixes the net value of the son to plaintiff for the two years at $50 per month, making a total of $1,200, in addition to the $100 for medicines first expended in treating him.

The court further finds that the Silurian Oil Company had a valid policy of insurance with the Maryland Casualty Company, and had in all other respects complied with the provisions of the Workmen's Compensation Law of this state; that the facts have been properly placed before the Industrial Accident Board of the state, which awarded the minor $15 per week for 401 weeks, based upon its finding that he had been totally and permanently disabled and incapacitated; that no appeal was prosecuted from said award, and that the Maryland Casualty Company has been paying to said minor $15 per week, none of which amount has been received by the plaintiff. The court concludes as a matter of law that the plaintiff is entitled to recover the full sum of $1,300, with interest at 6 per cent.; that the Workmen's Compensation Law of the state has no application to this action, and does not, either expressly or by necessary implication, take away from the plaintiff his right to recover damages on account of the injuries suffered by his minor son, through the negligence of the defendants, and in the course of a dangerous employment, without the knowledge or consent of the plaintiff.

These propositions present a question which, so far as we are able to find, has not heretofore been decided in this state. Appellee relies mainly upon the case of King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988, Ann. Cas. 1916D, 1170, and the cases which follow it. The Massachusetts statute (St. 1911, c. 751), like the Texas act, relating to the question of workmen's compensation, contains no express provision depriving the parent of an injured minor of his common-law right of action, and the court held in the King Case that an existing common-law right of action is not taken away by a statute save by direct enactment or necessary implication, and that laws depriving a citizen of rights possessed by them should be strictly construed. This rule is recognized in this state. Luder's Adm'r v. State (Tex. Civ. App.) 152 S. W. 220; Kampmann v. Cross (Tex. Civ. App.) 194 S. W. 437; Poe v. Continental Gin Co. (Tex. Com. App.) 231 S. W. 717.

It is a fundamental principle of the common law that a father has an independent right of action to recover for damages occasioned by injury to his minor child. 29 Cyc. 1697; T. & P. Ry. Co. v. Brick, 83 Tex. 526, 18 S. W. 947, 29 Am. St. Rep. 675; Cook v. Urban (Tex. Civ. App.) 167 S. W. 251. It is said in the King Case that the courts, in construing such statutes, could not read into them matters not touched upon by the Legislature, and that, since under the common law both the parents and the minor child have independent rights of action for the injury in such cases, the minor cannot, by waiving his common-law right under the provisions of the Massachusetts act (St. 1911, c. 751) pt. 1, § 5, which upon inspection we find is similar to article 5246—4 of the Texas act, also waive the right of the parent. The Massachusetts court further holds that that section of the Massachusetts act (part 2, § 5) which by comparison we find corresponds to V. C. S. art. 5246—9, providing that the association shall pay part of the medical expenses, etc., does not, where there is no element of estoppel abrogate the parent's common-law right of action.

Appellant cites a number of cases which hold contrary to the rule announced in the King Case. In Buonfiglio v. Neumann & Co., 93 N. J. Law, 174, 107 Atl. 285, the father sued under the original Workmen's Compensation Act of New Jersey (O. L. 1911, p. 134) to recover on account of negligent injury inflicted upon his minor son. No notice was given that the provisions of the act would not apply to the employment, and because of this fact acceptance of the act's provisions was, under the statute, presumed. The following quotation from the opinion of the court in this case discloses that the father was denied the right to recover by express provisions of the act, and the court says that this distinguishes the case from the King Case:

"There was no express statement in writing or written notice that the provisions of section 2 of the Workmen's Compensation Act (Act April 4, 1911; P. L. p. 134) were not intended to apply, and pursuant to section 8 the parties are presumed to have accepted the provisions of section 2, and to have agreed to be bound thereby. That the father was one of the parties so bound in the present case is shown by the fact that he received his son's wages. The question raised is whether the Workmen's Compensation Act furnishes the sole rule of compensation or whether the father has the same right of action he would have had at common law. The question turns on the provisions of the statute. Section 8 enacts that the `agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation, or determination thereof than as provided in section 2 of this act.' This express language settles the question adversely to the plaintiff."

Under the same statute, in Gregutis v. Waclark, 86 N. J. Law, 610, 92 Atl. 354, the New Jersey Court of Errors and Appeals held that an administratrix could not recover and that it repealed the New Jersey Death Act (2 Comp. St. 1910, P. 1907, which gave the representatives of the decedent the right to recover. The Supreme Court of Iowa, in Hilsinger v. Zimmerman Steel Co., 193 Iowa, 708, 187 N. W. 493, held that, by certain sections of the statutes of that state the father, as the next of kin, was expressly precluded from maintaining a separate suit. Reference to the conclusions quoted in the opinion shows that in this particular the act differs materially from either the Massachusetts or Texas acts.

In Wall v. Studebaker Corporation, 219 Mich. 434, 189 N. W. 58, the Supreme Court of Michigan, considering the same question, held that, since the act of that state (Pub. Laws Ex. Sess. 1912, No. 10, pt. 1, § 7) gave the infant the right of an adult to contract...