Texas Employers' Ins. Ass'n v. Peppers, 10939.

• Decision Date: 26 October 1939
• Docket Number: No. 10939.,10939.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. PEPPERS.
• Court: Texas Court of Appeals

133 S.W.2d 165

TEXAS EMPLOYERS' INS. ASS'N v. PEPPERS.

No. 10939.

Court of Civil Appeals of Texas. Galveston.

October 26, 1939.

Rehearing Denied November 16, 1939.

Error from District Court, Galveston County; C. G. Dibrell, Judge.

Suit under the Workmen's Compensation Act by the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board in favor of C. C. Peppers, wherein C. C. Peppers filed a cross-action. To review a judgment denying relief the plaintiff brings error.

Affirmed.

Royston & Rayzor, of Galveston (M. L. Cook, of Galveston, of counsel), for plaintiff in error.

Thornton & Markwell, of Galveston, for defendant in error.

CODY, Justice.

This is a workman's compensation case, and as such, advanced on the docket of this court.

The defendant in error is a longshoreman, and was seriously injured while unloading scrap iron from a car at Texas City, and loading same upon a ship, when the electric magnet weighing some two tons, and which was used to lift the scrap iron from the car onto the ship, fell on him. The Industrial Accident Board rendered an award of 200 weeks compensation at the rate of $18.60 per week, less a credit of $399.60 theretofore voluntarily paid defendant in error by plaintiff in error. In due time plaintiff in error filed its suit in the district court of Galveston County to set aside such award, and judgment was there rendered against plaintiff in error, and in favor of defendant in error, upon the answers of the jury to numerous special issues, for compensation at the rate of $20 a week for 401 weeks, payable in a lump sum, less the credit of $399.60.

It is well established that longshore work is irregular, not only with respect to the number of days worked in a year, but also with respect to working for the same employer,—a longshoreman may work for fifteen different employers on fifteen consecutive days. In this case it is admitted that neither defendant in error, nor any other longshoreman, has worked substantially the whole of the year within the meaning and provisions of the Workman's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., and no question is made but that defendant in error's average weekly wage must be determined under Section 1, Subdivision 3, Art. 8309, R.S.1925, which reads:

"When by reason of the shortness of the time of the employment of the employé, or other employés engaged in the same class of work in the manner and for the length of time specified in the above subsections 1 and 2, or other good and sufficient reasons it is impracticable to compute the average weekly wages as above defined, it shall be computed by the board in any manner which may seem just and fair to both parties."

Plaintiff in error pled that if defendant in error is entitled to any compensation that such compensation should be based on an average weekly wage of $18 per week, as defendant in error was bound by the terms of the contract existing between the international Longshoremen's Association and the members of the Maritime Committee of the Galveston Cotton Exchange and Board of Trade, and the Master Stevedores Association of Texas, and others, which contract governed the rules, rates of pay, and working conditions of longshoremen; that among other things the contract contained the following provision, being Section 15 of such contract:

"It is mutually agreed by all of the parties signatory to this contract that for the purposes of computing and ascertaining the average weekly wages of longshoremen covered by this contract, when such longshoremen are claiming compensation under the Workmen's Compensation Laws of the State of Texas, or of the Longshoremen and Harbor Workers Act of the United States Congress, that average weekly wage shall be eighteen dollars ($18.00)."

And plaintiff in error pled that defendant in error was bound by such Section 15 of the contract, and therefore was precluded from proving that his compensation exceeded $18 per week; that such provision was fair and just, and — quoting from plaintiff in error's pleading verbatim — "The persons who negotiated the contract, after due and full consideration of the earnings, work opportunities and all other relevant factors entering into the average weekly wage of longshoremen, and especially Texas City longshoremen, and having found and being of the opinion that an average weekly wage of $18.00 per week would be just and fair to the longshoremen who might have claims for compensation, and to the plaintiff herein, secured the consent and approval of plaintiff to agree upon and insert in said contract a definite and certain average weekly wage, and plaintiff agreed to the average weekly wage of $18.00 and that the provision of the contract hereinabove referred to should be incorporated in and made a part of that contract. That each and every claim for compensation which was presented to plaintiff by longshoremen subject to the agreement referred to was paid and allowed on the basis of the agreed average weekly wage of $18.00 per week; that said rate was and is fair and just to defendant herein; that the average weekly wage of $18.00 is fair and just to defendant for the further reason that he accepted all of the other benefits of the Longshoremen's Contract and by continuing to work thereunder he ratified, approved and acquiesced in said rate in addition to having been bound by the Longshoremen's Contract as a member of the I. L. A. Local No. 636; that any average weekly wage above $18.00 per week would be unfair to plaintiff herein because it has heretofore, at all times, and in all other cases, conducted its business and affairs on the basis that the average weekly wage for longshoremen was the average weekly wage provided for in the longshoremen's agreement, and in handling such claims has never attempted to pay any claimant on any average weekly wage basis other than $18.00, and has never concerned itself with or attempted to lower the average weekly wage in the many instances where, as a matter of fact, the claimant's average weekly wage was less than $18.00; that it would be manifestly unfair and inequitable to plaintiff to permit defendant to claim or recover compensation on an average weekly wage basis other than $18.00; that it would be unfair to plaintiff to permit defendant to avoid, refuse to abide by, or depart from the agreed average wage of $18.00."

The court below, being of the opinion that such Section 15 was illegal, refused to permit plaintiff in error to introduce it into evidence, or to enforce such average weekly wage provision, and plaintiff in error urges numerous assignments of error to such action of the court.

Whatever the object of the quoted paragraph 15 of the aforementioned contract may be, it is perfectly clear that the purpose of plaintiff in error in urging it upon the court is to prevent defendant in error from proving facts which, under the provisions of the Workmen's Compensation Act, would entitle defendant in error to a greater compensation than that based upon the agreement contained in paragraph 15 of the contract.

Now the Workmen's Compensation Act was enacted principally to protect the employee and to assure him, without delay or expense, the compensation for injuries which the Act provides for. Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675. And any agreement which violates the Act is void; and the courts will not enforce contracts which are either expressly or impliedly prohibited by the Act. Id. See, also, James v. Fulcrod, 5 Tex. 512, 55 Am.Dec. 743; Hennessy v. Automobile Owners' Ins. Ass'n, Tex.Com App., 282 S.W. 791, 46 A.L.R. 521,—and the additional authorities cited in Woolsey v. Panhandle Refining Co. It is perfectly clear that, if defendant in error was able to prove he was entitled to recover on the basis of $40 weekly compensation under the provisions of the Act, no act or agreement of his own, nor any made on his behalf by others, to accept compensation on the basis of $18 weekly compensation is legally enforceable. The question before us is not whether, generally speaking, the provisions of paragraph 15 would be just and fair to longshoremen and their employers. We can conceive of cases where such provisions would be just and fair. But in cases where an employee is able to offer proof which would sustain a jury finding that he was entitled to compensation under the Act, based on a weekly wage substantially in excess of $18 per week, it is self-evident that no agreement by an employee, the effect of which would be to limit him to compensation less than that fixed by the Act is enforceable.

Since such an agreement is not directly enforceable against an employee who offers to prove weekly earnings greater than those fixed by agreement, because violative of the Act, it was not error for the court to refuse to permit plaintiff in error to try to enforce it indirectly by estoppel, etc. Hence all of plaintiff in error's assignments of error relating to such agreement are overruled.

Over the objection of plaintiff in error, the defendant in error was permitted to testify that during the year immediately preceding his injury he worked for Foster and Wheeler as a laborer,—pipe-fitter's helper and an electrician's helper, for which services he received 68-½ cents per hour; that he was classified as a laborer while working for Southport Oil & Refining Company; that he worked as a laborer for the Kellog Construction Company, digging foundations, carrying steel, etc.; that he worked for the Pan-American Refining Company. At the time of the injury he was working as a longshoreman for the Texports Stevedore Company at a rate of 85 cents an hour straight time, and $1.37-½ overtime. Regular time consisted of hours worked between 8 A. M. and 5 P. M. Plaintiff in error earnestly insists that claimant's employment and earnings as an electrician's helper, pipe-fitter's helper, and common laborer were...