Southern Underwriters v. Davis, 1902.
| Decision Date | 05 May 1939 |
| Docket Number | No. 1902.,1902. |
| Citation | 129 S.W.2d 720 |
| Parties | SOUTHERN UNDERWRITERS v. DAVIS et al. |
| Court | Texas Court of Appeals |
Benbow, Saunders & Holliday, of Dallas, for plaintiff in error.
Grindstaff, Zellers & Hutcheson, of Weatherford, and Allen D. Dabney, of Eastland, for defendants in error.
This is an appeal from a judgment obtained in a workmen's compensation case by Mrs. Ollie Davis and D. A. Davis, Jr., the wife and child, and sole beneficiaries, of D. A. Davis, deceased, against the Southern Underwriters, the alleged insurance carrier of the Oilfield Transportation Company, a partnership, composed of J. S. Brimberry and F. G. Yonker. For convenience, the Davis's will be referred to as plaintiffs, the Southern Underwriters as defendant, the Oilfield Transportation Company, as Transportation Company, and Motor Carriers Insurance Agency, as Insurance Agency.
If not shown by the undisputed evidence, the testimony is sufficient to support a finding of the following facts: D. A. Davis was killed in the course of his employment by the Oilfield Transportation Company, which was a partnership composed of the persons above named. Davis was killed on February 24, 1936, while hauling oil field equipment for the Transportation Company. The policy of insurance upon which suit was brought by plaintiffs was issued by defendant on April 16, 1935, and was to expire, by its own terms, April 16, 1936. It was issued in the name of J. S. Brimberry, doing business as the Oilfield Transportation Company. The Transportation Company was organized in 1932. On March 10, 1932, the Transportation Company filed with the Railroad Commission of Texas an application for a permit to operate as a special commodity carrier. The application recited it was a firm, located at Ranger, Texas, and that its members consisted of J. S. Brimberry and F. G. Yonker. The application was granted on September 15, 1934. Thereafter, the permit was amended so as to authorize the Transportation Company to transport household goods, oil field equipment, etc., to and from all points in Texas. This permit was in force at the time Davis was killed. On April 16, 1934, defendant issued a Workmen's Compensation policy to J. S. Brimberry, doing business as the Oilfield Transportation Company. This policy was effective until April 16, 1935. To obtain the special commodity carrier permit the law required the Transportation Company to obtain a Workman's Compensation policy for the protection of its employees, and to have such policy filed with the Railroad Commission. Said policy issued by defendant contained an indorsement, in part, as follows:
The policy sued on is Policy "WC-994-1", dated April 16, 1935, and effective for one year from its date. It was filed with the Railroad Commission March 21, 1935. It contains the same indorsement as to notice of cancellation as did the immediately preceding policy issued by defendant to the Transportation Company.
There was evidence that before and after said permit was obtained by the Transportation Company, all of its Workmen's Compensation Insurance policies were procured, and all matters pertaining thereto handled, through Motor Carriers Insurance Agency of Austin, of which George Wiebusch was manager. Said Insurance Agency made out the applications; upon receipt of them by the Transportation Company, the applications were signed by J. S. Brimberry, who was its manager. The applications were then returned to the Insurance Agency, the policy issued by defendant and delivered to the Insurance Agency. At the close of each month said Insurance Agency would send to the Transportation Company for defendant a blank upon which the payroll would be calculated by the Transportation Company, and the report of the monthly wages paid by the Transportation Company to its employees, and the premium due thereon, were then sent by the Transportation Company to said Insurance Agency for defendant. As illustrative of the matter just mentioned, Defendant's Exhibit 1 is, in part, as follows:
"Pay Roll Report
The Southern Underwriters
Sterling Building
Houston, Texas
Policies
Motor Carrier Insurance Agency
W.C. 994-1
Assured J. S. Brimberry
Oilfield Transportation Co
Assured Oilfield Transportation
Company
By (Signed) J. S. Brimberry."
Such a report was made for the month of November, 1935. The Transportation Company, in remitting the premium for said month, sent an insufficient amount, whereupon the following letter was sent and received, as indicated:
Upon receipt of said letter, the Transportation Company sent to the Insurance Agency a check for $5.77, signed Oilfield Transportation Company, by J. S. Brimberry, and countersigned, F. G. Yonker. Other monthly payroll report blanks were sent by the Insurance Agency, acting through its general manager, Wiebusch, to the Transportation Company, which latter company was addressed as "Gentlemen." The letter head of the Motor Carrier Insurance Agency, among other things, showed "Geo. H. Wiebusch, General Mgr." and "Elmer G. Gunn, Claim Adjuster." There were other checks issued in payment of the monthly Workmen's Compensation premiums due defendant by the Transportation Company, signed by J. S. Brimberry and countersigned by F. G. Yonker. All premiums paid on the policy sued on, and all prior policies and policies issued subsequent thereto, issued to the Transportation Company, or to J. S. Brimberry, doing business as Oilfield Transportation Company, were paid by the partnership. During all of said time, J. S. Brimberry, individually, had no employees, neither did he have a permit, as an individual, from the Railroad Commission of Texas to operate the business in which he was engaged. He was operating exclusively under the authority of the permit granted to the Oilfield Transportation Company, a partnership. The premiums paid on said policies "were paid and based upon the wage earning of the employees of the Oilfield Transportation Company and no other." The basis for payments of premiums by said partnership included the wages paid to D. A. Davis, deceased. The policy upon which suit was brought was procured not only for the protection of said partnership, and its employees, but to comply with the requirement that it be filed with the Railroad Commission "against" its permit issued by the Railroad Commission, of which fact defendant and its agents had notice.
There was evidence that Elmer G. Gunn, Claim Adjuster for the Insurance Agency, was acquainted with Mr. Brimberry and Mr. Yonker. That he was in the office of said company at Ranger in 1934, for the purpose of adjusting a claim by an employee of the Transportation Company against the defendant; that defendant was then carrying the Workmen's Compensation insurance for the Oilfield Transportation Company; that at said time, Mr. Brimberry "made him acquainted with Mr. Yonker, as a partner in the firm of the Oilfield Transportation Company." This was before the defendant issued the policy sued on dated April 16, 1935, and while Gunn was adjusting a claim on behalf of defendant. There were several employees of the Transportation Company injured while defendant was carrying its Workmen's Compensation Insurance. Reports thereof were made by said Transportation Company to defendant, and, with such knowledge, defendant made settlements with injured employees of the partnership for their claims. As an example, indicating the manner in which such matters were handled, we here set out, in part, the report of an accident and a letter from the defendant to the Transportation Company, as follows:
"1. Name of employer Oilfield Transportation
Company
Employer
2. Address: No. and St. 211 South Rusk
City: Ranger, Texas
3. Insured by the Southern Underwriters,
Houston, Tex.
4. Give nature of business (or article
manufactured) Transportation
...............
Date of this report March 9th
Firm name Oilfield Transportation Company
Signed by J. S. Brimberry
Official Title Mgr.."
"Southern Underwriters Corporation
Attorney
The Southern Underwriters
Organized July 1907
Sterling Building
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