Southern Underwriters v. Jones
| Decision Date | 22 December 1939 |
| Docket Number | No. 13940.,13940. |
| Citation | 137 S.W.2d 52 |
| Parties | SOUTHERN UNDERWRITERS v. JONES et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Clay County; Earl P. Hall, Judge.
Suit under the Workmen's Compensation Act by the Southern Underwriters to set aside an award of the Industrial Accident Board in favor of Pauline Jones and another, wherein the defendants filed a cross-action to recover compensation on the policy of insurance which plaintiff had issued to the Brashear Drilling Company. The plaintiff took a nonsuit of its cause of action. Judgment for defendants on their cross-action, and plaintiff appeals.
Affirmed.
Bullington, Humphrey & King, of Wichita Falls, and Will R. Saunders, Claude Williams, and Henry D. Akin, all of Dallas, for appellant.
Bonner, King, Dawson & Jones, of Wichita Falls, for appellees.
While Roy Earl Jones was working as an employee for the Brashear Drilling Company, a co-partnership, in Clay County, he contracted pneumonia, from which he died. His employer carried insurance with the Southern Underwriters, under the provisions of the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq.
After his death, Pauline Jones, his widow, in behalf of herself and as next friend for her minor son, Gary Jones, filed with the Industrial Accident Board a claim for compensation under the Workmen's Compensation Act. The Industrial Accident Board awarded to the widow and minor child each $10 per week for a period of 360 consecutive weeks, together with a fixed sum as attorney's fees.
The insurer, being dissatisfied with that award, brought suit in the District Court of Clay County, to annul it.
To that petition the widow, for herself and as next friend for her minor son, Gary Jones, filed an answer, together with a cross action, to recover compensation on the policy of insurance which the Southern Underwriters had issued to Brashear Drilling Company. The cross action embodied allegations of the death of Roy Earl Jones, while engaged as an employee of the Brashear Drilling Company, who was a subscriber and carried a policy of insurance with the Southern Underwriters. According to further allegations in that cross action, while so employed, Roy Earl Jones sustained personal injuries in the course of his employment as a tool dresser, as follows: He and his co-worker, Ray Mason, were at work on an oil well being drilled by his employer, and in the performance of the duties of that work they used a long handled, half moon jack, and while the deceased was pulling upon the handle with all his might, with Ray Mason pushing, the handle slipped out of the jack, causing the deceased to fall with his back against the derrick floor and Ray Mason fell on top of him, with his knee striking the deceased a heavy blow on his chest, and from that accidental injury pneumonia set up, which resulted in the death of the deceased.
The cross action embodied another count, in which it was alleged that just before and after the deceased sustained the injury above alleged, the bailer used in the well being drilled, and with which the deceased was working, sprang a leak near the bottom and the pressure from the water in the bailer above the leak caused it to flow out in quite a large quantity, while the bailer would come up out of the well with a whirling motion, and two or three times the deceased was strangled with water thrown in his face as the bailer came out of the well, which water was breathed into his lungs and caused him to become strangled, as the result of which his lungs became inflamed, and that the breathing of said water into his lungs caused or contributed to cause pneumonia, from which Roy Earl Jones died.
It was alleged that both of the injuries above noted were accidental, personal injuries sustained by Roy Earl Jones in the course of his employment, and were compensable under the Workmen's Compensation Act. In that connection, it was alleged that said Jones had been employed by the Brashear Drilling Company to do the same character of work for the period of two months prior to the date of his death and prior to that employment he worked for others in the same capacity and in the same general territory, for approximately the same wages, for more than a year prior to his death. That his average daily wages, as defined by said Act, which were received by him at the time of his death and for more than a year prior thereto, were $7 per day, for seven days a week, aggregating $49 per week, and that his average annual wage, as defined in the Workmen's Compensation Act, was $2,100, and his average weekly wage was $40, all of which was the same wage earned by others engaged in the same employment, near the same place.
It was further alleged that if for any reason the manner of computing the compensation claimed, as above alleged, appears to the court to be unfair and impractical for compensation, then the defendant prayed the court to compute said wages in any manner that might seem just and fair to all parties. There were further allegations of notice of the accident and injury given to the Brashear Drilling Company and to Southern Underwriters and the Industrial Accident Board, within the manner and time prescribed by the Statute, with further allegations of the action of the Board on the claims filed with it by the defendants.
The insurer filed an answer to that cross action, consisting of a general demurrer, special exceptions, a general denial and a special answer, in which it was alleged that the deceased contracted what is commonly known as streptococcic sore throat, which is a germ infection, and that said infection, by direct extension, spread to the bronchi and lungs, and was the direct and producing cause of his death, and that the deceased did not die by reason of any accidental injury in the course of his employment.
On the following day after that answer was filed, the plaintiff took a non-suit of the cause of action theretofore asserted in the District Court, which was permitted by order of the court, without prejudice to the defendant's cross action.
By trial amendment, the defendants also sought an allowance for attorney's fees to Mr. Bert King, who was employed by them to represent their interests.
The case was tried before a jury upon special issues, and their findings appear in the record.
The issues and findings thereon were as follows, eliminating therefrom instructions to the effect that the submission of some of the issues was conditioned upon certain answers to preceding issues:
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