Stanaland v. Traders & General Ins. Co.

• Decision Date: 29 May 1946
• Docket Number: No. A-609.,A-609.
• Citation: 195 S.W.2d 118
• Parties: STANALAND et al. v. TRADERS & GENERAL INS. CO.
• Court: Texas Supreme Court

Page 118

195 S.W.2d 118

STANALAND et al. v. TRADERS & GENERAL INS. CO.

No. A-609.

Supreme Court of Texas.

May 29, 1946.

As Modified on Denial of Rehearing July 10, 1946.

Error to the Court of Civil Appeals of Sixth Supreme Judicial District; Appeal from Rusk County.

Suit under the Workmen's Compensation Act by Mrs. Lizzie Stanaland and another against Traders & General Insurance Company, insurance carrier, to set aside an award of the Industrial Accident Board. To review a judgment of the Court of Civil Appeals, 189 S.W.2d 55, which reversed a judgment for plaintiffs and remanded the case, plaintiffs bring error.

Affirmed.

Fulmer & Fairchild and R. W. Fairchild, all of Nacogdoches, for petitioners.

Wynne & Wynne, of Longview, and Lightfoot & Robertson and Dan P. Johnston, all of Dallas, for respondent.

TAYLOR, Justice.

This is a Workmen's Compensation case. The proceeding in its present form is a suit by Mrs. Lizzie Stanaland, a married woman, against Traders & General Insurance Company. The deceased, Ed Miller, was her half-brother. The trial court's judgment was in the claimant's favor.

The Industrial Accident Board on March 20, 1944, denied a claim for compensation filed by the brothers and sisters of deceased, the then alleged beneficiaries, including Mrs. Stanaland, and stated in the order as its reason for denying the claim, that "said Sam Miller, Joe Miller, Minnie Lee Summers, Nancy McLean and Lizzie M. Stanaland, and their attorney of record * * * have failed to establish dependency" upon the deceased "at the time or immediately prior to fatal injury and death."

The five claimants named in the board's order were three half-sisters and two half-brothers of the deceased. Only one, Mrs. Stanaland (joined by her husband, Virgil Stanaland) filed suit pursuant to the notice given by all the claimants that they would not abide the final ruling of the board. The other claimants did not file suit within the twenty days allowed therefor and do not appear to have further prosecuted their claims. About a month after suit was filed by Mrs. Stanaland alleging that the other brothers and sisters were not dependent on the deceased, the others filed disclaimers in interest, respectively, in favor of Mrs. Stanaland.

The defendant company moved to strike the disclaimer plea on the ground that the attorney, the same who filed the claim on behalf of all the original claimants, showed no authority given him to file the disclaimer. The Court of Civil Appeals reached the correct conclusion that "no reversible error" was presented by the trial court's action in denying the motion to strike. Art. 320, R.C.S. 1925; Rule 12, Texas Rules of Civil Procedure; Victory v. State, 138 Tex. 285, 158 S.W.2d 760; State v. Murphy, Tex.Civ.App., 137 S.W. 708; Cook v. City of Booker et al., Tex. Civ.App., 167 S.W.2d 232.

After the disclaimers were filed, the Stanalands filed, and went to trial on, their first amended original petition. Special issues were submitted to the jury and upon its findings, together with additional findings made by the trial judge, a lump-sum judgment was rendered for the Stanalands for $5,952.83. The Court of Civil Appeals reversed the judgment and remanded the cause. Tex.Civ.App., 189 S.W.2d 55. Writ of error was granted on application of the Stanalands.

It was established upon the trial that deceased had no survivors for whom compensation was provided by the Workmen's Compensation Act, Art. 8306, Sec. 8a, R.C.S. payable without proof of dependency in fact, such as a surviving wife, minor child, parent or stepmother. The portion of the provision of section 8a under which Mrs. Stanaland's claim as a beneficiary falls, is as follows: "The compensation provided * * * shall be for * * * dependent grandparents, dependent children and dependent brothers and sisters of the deceased employé; * * * provided the right in such beneficiary * * * to recover compensation for death be determined by the facts that exist at the date of the death of the deceased and that said right be a complete, absolute and vested one." (Italics ours.)

The claim of Mrs. Stanaland falls under the "dependent brothers and sisters of the deceased" classification of relationships; and one of the questions to be decided is whether at the time of the death of Ed Miller the facts showed Mrs. Stanaland was a dependent of his within the meaning of the foregoing provision of section 8a.

The defendant company urged the point that Mrs. Stanaland was not a member of the class of beneficiaries named in the Workmen's Compensation Act in that half-sisters, not being named, were excluded. The point was overruled by the courts below. As stated in the opinion of the Court of Civil Appeals, "this precise question" has not heretofore been presented to an appellate court of this state for decision. We hold that the trial court ruled correctly; and that the Court of Civil Appeals correctly held, that since "the words `brother' and `sister'" were used in the statute without qualifying words, "they include half-brother or half-sister." See the concise statement, the clear discussion of the question, and the authorities cited and discussed in the opinion (189 S.W.2d p. 57, first column), all of which we approve.

The Stanalands in setting forth in their amended petition the reasons why compensation paid the claimants weekly would be "inadequate to meet the necessities and demands" of Mrs. Stanaland, alleged the following: "Plaintiff will show that Lizzie Stanaland has large outstanding financial obligations that she is obliged to pay, some of which obligations were contracted directly in pursuance of the promise of deceased, J. E. Miller, to pay off for her if she made the same." (All emphasis in this opinion is supplied.)

The defendant company excepted specially to the foregoing allegation for the reason that Mrs. Stanaland was not entitled to recover compensation against it on the ground that she had become bound to pay obligations which deceased had promised to pay for her in event she incurred same, and that the pleading was prejudicial. The exception was overruled. The Court of Civil Appeals did not pass on the company's point alleging the trial court's action was erroneous.

The company presented in the Court of Civil Appeals as one of its points alleged in this connection that the trial court erred in permitting the claimant to plead that deceased "promised" to help them buy a farm, because such transaction did not constitute a ground for establishing dependency, or a ground for recovery under the compensation act. Another point closely allied to those pointed out, arose in this fashion: Virgil Stanaland, the husband, in detailing the outstanding obligations of his wife and himself, stated he had three work mules, nine cows and some calves, all of his farm equipment and his wagon and plows, as well as his crop, tied up at the "Farm Security loan"; that in January, 1944, he and his wife moved onto 158.2 acres of land which they purchased by deed dated August 9, 1943, for a total consideration paid and agreed to be paid of $2,343; that $343 made as a down payment was procured from Ivan Stanaland and that the balance of $2,000 was to be paid at $200 a year. During the examination by counsel of the Stanalands of Ivan Stanaland (one of Virgil's brothers) he was asked what part he played in helping get the deed and whether he made the down payment upon the promise of deceased and Virgil to reimburse him. The company objected on the grounds that the testimony had no bearing on the case, was not binding on it, and prejudicial. The court overruled the objection. Points alleging error were duly urged in the company's brief in the Court of Civil Appeals.

The final evidence point set out in the company's brief alleged that the trial court erred in permitting plaintiff, Lizzie Stanaland, over the objections urged, to make a comparison (in terms of her own conclusion) as to which "brought in the most in the way of necessary furnishings for the family," her husband or Ed Miller (the deceased).

The Court of Civil Appeals, without passing on any of the above points, reversed the case solely on the trial court's refusal to give in his charge what is referred to in the excerpt quoted below from the court's opinion, as "the tendered instruction of defendant" or a similar instruction. The account of the proceedings which immediately follow reflect the record on the point on which the case was reversed and remanded. The trial court gave in his charge the following definition of "dependent" in connection with special issue No. 7:

"By the word `Dependent,' as used in the next issue, is meant a person who relied in whole or in part upon the assistance he or she received for support from the deceased.

"Special Issue No. 7

"Do you find from a preponderance of the evidence that Lizzie Stanaland was a dependent of Ed Miller, deceased, at the time of his death?"

The company objected to the charge on numerous grounds, one of which, together with a request for a suggested amendment or correction, is as follows: "* * * For the reason that the word `dependent', as * * * defined, * * * would permit the...