Southern Underwriters v. Girard

• Decision Date: 27 May 1937
• Docket Number: No. 5135.,5135.
• Parties: SOUTHERN UNDERWRITERS v. GIRARD.
• Court: Texas Court of Appeals

Page 775

107 S.W.2d 775

SOUTHERN UNDERWRITERS v. GIRARD.

No. 5135.

Court of Civil Appeals of Texas. Texarkana.

May 27, 1937.

Error from District Court, Gregg County; Will C. Hurst, Judge.

Proceeding under the Workmen's Compensation Act by Floyd Girard, claimant, opposed by the Adams Oil Company, employer, and the Southern Underwriters, insurer. To review a judgment for claimant, entered on his appeal from an award made by the Industrial Accident Board, insurer brings error.

Affirmed.

Battaile & Burr, of Houston, for plaintiff in error.

Houston & Johnson and W. L. Oliphant, all of Dallas, for defendant in error.

WILLIAMS, Justice.

This suit involves the right of Floyd Girard, defendant in error, to recover compensation under the Workmen's Compensation Act of Texas (Vernon's Ann.Civ.St. arts. 8306-8309) for accidental injuries received in the course of an alleged employment by the Adams Oil Company, a subscriber, insured by the Southern Underwriters, plaintiff in error. The parties will herein be referred to as claimant, insurer, and employer. Claimant appealed from the award made by the Industrial Accident Board. Upon trial to the jury, judgment was rendered for claimant. This appeal is predicated upon one assignment of error, namely, the court erred in refusing to instruct the jury to return a verdict for the insurer at the conclusion of the evidence. Insurer urges that in order for a claimant to recover for compensation benefits, he must establish by a preponderance of the evidence the fact as to who his employer is, and that his employer is a subscriber under the Workmen's Compensation Act. This is the only proposition urged in this appeal.

It is uncontroverted in this evidence that the Adams Oil Company was a subscriber under the Workmen's Compensation Act, and was insured by the Southern Underwriters, Houston, Tex. Adams Oil Company had theretofore filed with the Industrial Accident Board notice that it had become a subscriber under the compensation law with Southern Underwriters of 1408-10 Sterling building, Houston, Tex., as insurer. In this notice so filed with the board, are the recitations: "Occupation: Oil refining; estimated annual payroll: $13,800; Policy No. W. C.-575" and was signed "Adams Oil Company by W. E. Miller." Claimant testified that he knew a Mr. Miller who was connected with the refinery where he worked; that he had seen this Mr. Miller in and about the plant but did not know his initials.

It was undisputed that claimant was hired by a Mr. Utley and worked from along in May, 1934, until October 24th, at a refinery located on Pistol Hill near Kilgore, and on this latter date while so employed at this refinery he received the injuries described in his petition.

The evidence is uncontradicted and unexplained that gauges and laboratory equipment tagged and addressed to "Adams Oil Company" were received and installed on the distills and boiler at the refinery where claimant worked. It is further undisputed in the evidence that there was in the office on the refinery location where claimant worked stationery with the heading "Adams Oil Company."

The only testimony offered by insurer bearing upon the question as to the identity of claimant's employer or this refinery where claimant was working is: A Mr. Rotrammel testified that a Mr. Utley engaged him to work in a refinery located on Piston Hill, near Kilgore, and that claimant worked with witness at the same refinery and they were working there when claimant received his alleged injuries, and that this was the Triangle Refining Company and owned by Rex Stegall. It introduced a statement made by claimant to a physician at the time of claimant's first medical examination that recited he was injured at the Triangle Refinery. Claimant testified that he knew the refinery as the Adams Oil Company and worked for the Adams Oil Company from in May to October 24, 1934, but knew it had been called the Triangle Refinery. The notice given by Adams Oil Company that it had become a subscriber under the Workmen's Compensation Act does not reveal the true identity of "Adams Oil Company," whether some individual or individuals operating under this trade-name, or whether a corporation. Plaintiff's allegations as to the identity of Adams Oil Company, the alleged employer, reads:

"* * * that plaintiff is not informed as to who or what composes Adams Oil Company, and, for want of more particular information, alleges that Adams Oil Company, is either a corporation duly incorporated under the laws of the State of Texas, or that Adams Oil Company is a trade name of an individual, or individuals, not known to plaintiff, or the firm name of a partnership composed of members not known to plaintiff; that whatever or whoever constitutes, or constitute, the said Adams Oil Company, it or they occupied the relation of employer to plaintiff in the business hereinabove described, in which it, or they, was, or were, a subscriber, or subscribers, as hereinabove alleged and that the defendant here named, the Southern Underwriters, was the insurer. * * *"

We are unable to state what the answer of insurer revealed as to the identity of Adams Oil Company, for the answer of insurer has not been incorporated in the transcript. Adams Oil Company may have been Rex Stegall using this as a trade-name, and operating this refinery under the trade-name of Triangle Refinery. But it is immaterial whether Adams Oil Company was an individual or a partnership using this as a trade-name, or that it was a corporation. It is an undisputed fact that Southern Underwriters, Houston, Tex., was the insurer for a concern named "Adams Oil Company" and that "Adams Oil Company" was in the oil refining business.

The court defined "employee" and "in the course of employment." To question No. 2, reading: "Do you find from a preponderance of the evidence that such injury was sustained while in the course of employment as an employee of Adams Oil Company," the jury answered "Yes." This brings us...