Texas Employers' Ins. Ass'n v. Arnold
Decision Date | 20 May 1933 |
Docket Number | No. 12847.,12847. |
Citation | 62 S.W.2d 609 |
Parties | TEXAS EMPLOYERS' INS. ASS'N v. ARNOLD.<SMALL><SUP>*</SUP></SMALL> |
Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Bruce Young, Judge.
Suit by Francis A. Arnold against the Texas Employers' Insurance Association to set aside an award denying compensation for the death of his father, employee of the North Texas Iron & Steel Company, employer. From a judgment for plaintiff, defendant appeals.
Affirmed.
Todd & Crowley, of Fort Worth, and Lawther, Cox & Cramer and William M. Cramer, all of Dallas, for appellant.
W. L. Coley, of Fort Worth, for appellee.
The Texas Employers' Insurance Association has prosecuted this appeal from a judgment rendered against it in favor of Francis A. Arnold for benefits claimed as the result of the death of his father, J. P. Arnold, who died while he was an employee of the North Texas Iron & Steel Company in the city of Fort Worth, Tex., which company carried insurance with the defendant covering injuries to its employees.
The first question to be determined on this appeal is whether or not plaintiff was a dependent of his father at the time of the latter's death, and therefore a beneficiary under the policy within the meaning of the Workmen's Compensation Law. Section 8a of part 1 of that law (Rev. St. 1925, art. 8306, § 8a) reads in part as follows: "The compensation provided for in the foregoing section of this law shall be for the sole and exclusive benefit of the surviving husband who has not for good cause and for a period of three years prior thereto, abandoned his wife at the time of the injury, and of the wife who has not at the time of the injury without good cause and for a period of three years prior thereto, abandoned her husband, and of the minor children, parents and stepmother, without regard to the question of dependency, dependent grandparents, dependent children and dependent brothers and sisters of the deceased employee."
The record shows that J. P. Arnold died on October 9, 1928, and at that time plaintiff was about 42 years of age. J. P. Arnold was a widower at the time of his death, and left no minor children, nor either of his parents surviving him, nor did he leave a stepmother. He left five brothers and two sisters, all of whom resided in the state of Pennsylvania and were over 40 years of age, and none of whom were in any manner dependent upon him for support.
Plaintiff was a resident of the state of Pennsylvania; his wife died in February, 1921, leaving him with two small daughters, ages 10 and 8 years. According to his testimony, at the time of his wife's death he had no money and no employment, and had to keep house and look after the children; several months after his wife died his father, then living in Fort Worth, sent him $700 to go in the general contracting business with his brother-in-law, but a few months thereafter the business failed on account of a fire which destroyed his equipment, and his brother-in-law and sister were burned to death. He then had on his hands the three minor children of his sister. On November 12, 1921, after the loss of his business, he sustained an injury to his knee while working with some heavy machinery. He testified that:
According to his further testimony, he was treated in different hospitals, losing much weight, and later had an operation which resulted in the removal of the cap of his knee. On account of his injury, he was unable to earn a livelihood by any kind of work for a period of about 5 years, and during that time he was unable to support himself and minor children without assistance. He further testified that his father came from Fort Worth and visited him in Pennsylvania at the time of his injury, and agreed to furnish him as much as he could possibly spare to take care of him, his children, and his sister's children. His father then returned to Fort Worth. According to his further testimony, for a few years after 1925 he worked at several different jobs, earning approximately $150 a month a portion of the time, and a part of the time engaged in the restaurant business. He further testified:
Mrs. G. D. Moss, who resided in Fort Worth, where she has kept a boarding house since the year 1922, was introduced as a witness for the plaintiff. She testified that J. P. Arnold boarded with her. She further testified:
Mr. W. L. Coley testified for the plaintiff that he became acquainted with J. P. Arnold in the year 1920, and frequently talked with him, and that his acquaintance was quite close by reason of the fact that they were both members of the same church and that practically every Sunday from the year 1921 until the time of Arnold's death the latter would talk to him about the plaintiff and his troubles, saying that plaintiff was unable to support himself and his children. He further testified:
Special issue No. 1 submitted to the jury and the answer thereto were as follows:
That was the only issue submitted to the jury, and in connection with it the court gave this definition:
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