Texas Employers' Ins. Ass'n v. Tabor

• Decision Date: 04 June 1925
• Docket Number: (No. 1778.)
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. TABOR.
• Court: Texas Court of Appeals

274 S.W. 309

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

(No. 1778.)

Court of Civil Appeals of Texas. El Paso.

June 4, 1925.

Rehearing Denied June 25, 1925.

Appeal from District Court, Stephens County; Walter F. Schenck, Judge.

Action by Jim Tabor against the Texas Employers' Insurance Association, to set aside an award of the Industrial Board denying plaintiff any relief. Judgment for plaintiff, and defendant appeals. Affirmed.

Lawther, Pope, Leachman & Lawther, of Dallas, and Hickman & Bateman, of Breckenridge, for appellant.

W. R. Saunders, of Breckenridge, for appellee.

HIGGINS, J.

This suit was brought by Tabor against the appellant to set aside the award of the Industrial Accident Board denying him any relief. It was alleged by the plaintiff that he was an employee of the Fulwiler Motor Company, which was a subscriber under the Workmen's Compensation Act, holding a policy of insurance issued by appellant, and upon February 10, 1924, he was injured in the course of his employment, which injuries totally and permanently incapacitated him to labor. By an amendment filed the day before the trial begun he asked for a lump settlement, alleging a failure to make such an award would result in manifest hardship and injustice to him and those dependent upon him.

The defendant answered by general demurrer and denial.

`The issues submitted and answers returned are as follows:

(1) "Were the injuries received by Jim Tabor on or about the 10th day of February, A. D. 1924, sustained while in the course of employment with the Fulwiler Motor Company? Answer: Yes."

(2) "Will the failure to pay the compensation, if any, in a lump sum, result in manifest hardship and injustice to plaintiff, Jim Tabor? Answer: Yes."

(3) "Did the injuries as received by Jim Tabor on or about February 10, 1924, result in permanent total incapacity to perform labor? Answer: Yes."

(4) "What was the average daily wage of Jim Tabor on or about February 10, A. D. 1924? Answer: $5."

Judgment was rendered in Tabor's favor for $5,581.09.

Error is first assigned to the overruling of a motion for a continuance, the ground of the motion being that the defendant was surprised by and unprepared to meet the allegations contained in the amendment upon which was based the prayer for a lump sum settlement.

By a long line of Supreme Court decisions the rule is established that the action of the trial court in overruling a motion for continuance cannot be reviewed unless a bill of exception is properly prepared and made a part of the record; that an exception noted in the order overruling the motion will not supply the place of such a bill. See cases cited in 7 Michie Digest, 101, 102. There is no bill in the record relating to the action of the court upon the motion, though in the order overruling the same appellant's exception is noted. In this condition of the record we cannot review the court's action in the premises. It may be said, however, that the controverting affidavit of appellee's counsel rebuts the allegation of surprise, and justifies the ruling upon the motion.

The subscriber, Fulwiler Motor Company, was an automobile dealer, engaged in business at Breckenridge in Stephens county. In the fall of 1923 the Motor Company sold a G. M. C. truck to Tabor & Myers, a partnership composed of appellee and W. M. Myers. The purchase was made by Myers in behalf of his firm and upon credit. A note was given for the purchase price, and mortgage given upon the truck to secure its payment. The mortgage contained the usual provision for the mortgagee to retake possession of the truck upon default in the payment of any installment of the purchase money, and that the mortgagor would pay all expenses incurred by retaking such possession. At that time Tabor & Myers were engaged in crushing and hauling rock for road construction purposes in Eastland county. The truck was taken to that county, and used in such work. On February 5, 1924, the partnership was dissolved by mutual agreement, Myers taking over all of its assets except a Ford truck, and assumed all of its debts. Upon or prior to such dissolution Tabor returned to Breckenridge. At that time an installment upon the purchase price of the G. M. C. truck was past due.

Tabor testified that a day or two before February 10, 1925, Mr. Fulwiler arranged with him to go after the car with R. V. Snaer, bookkeeper of the Fulwiler Motor Company. Mr. Snaer was to see Myers, obtain a payment upon the truck, and, failing to do so, retake possession thereof. Tabor's duty was to guide Snaer to the place where Myers and the truck were, and, if possession was taken, to drive the truck back to Breckenridge. The 10th was Sunday, and upon the morning of that date Snaer and Tabor drove to a point near Carbon where Myers had the truck. After a conversation between Snaer and Myers, the latter agreed to surrender the truck. Myers and Tabor got in it and went to Carbon where the bed of the truck was. Myers and Tabor put the bed on the truck, and it was surrendered by Myers to Tabor. The latter started with it to Breckenridge via Eastland. A short distance from Eastland the truck broke down, and Snaer, who was along in the car he had driven over, caused the truck to be towed to Eastland. It was necessary to obtain some parts for the truck, whereupon Snaer and Tabor started to Breckenridge to get them. Tabor was to take the parts back to Eastland and use same in repairing the car preparatory to driving it to Breckenridge. Upon the return trip to Breckenridge Snaer was driving the car they had started with that morning. A few miles from Breckenridge it turned over, crushing and breaking Tabor's leg. Tabor testified that Fulwiler agred to pay him the customary truck driver's wages while going after and returning with the truck, and Fulwiler instructed him to obey Snaer's orders on the trip. Snaer testified Tabor agreed to go after the truck in consideration of Fulwiler releasing him from liability on the Tabor & Myers note for the G. M. C. truck.

Fulwiler testified he arranged with Tabor to go with Snaer and get the truck, and agreed to pay him the reasonable value of his services. He denied that he agreed to release Tabor from liability on the note for the G. M. C. truck. Other facts in the case will be stated in the course of the opinion as may be necessary.

Error is assigned to the refusal of a peremptory instruction in appellant's favor upon the following grounds:

"(1) Because the uncontroverted evidence in the case shows that if there was any contract of employment between appellee and the Fulwiler Motor Company at all, it was a contract which was illegal, void, and unenforceable under the laws of this state, because it was a contract to perform work on Sunday, and the work was actually performed on Sunday in violation of the Penal Code of the state of Texas. There being no contract of employment between appellee and Fulwiler Motor Company, there was no relation of master and servant between them, and there should not have been any recovery by appellee under the Employers' Liability Act of the state of Texas.

"(2) Because appellee introduced no evidence of any notice of injury to the Texas Employers' Insurance Association or to the Fulwiler Motor Company within 30 days after the happening of such injury.

"(3) Because appellee introduced no evidence that he made claim for compensation on the Texas Employers' Insurance Association, the Fulwiler Motor Company, or the Industrial Accident Board within 6 months after the happening of such injury.

"(4) Because the uncontroverted evidence shows that the appellee was not an employee under the terms of the Employers' Liability Act, in that at the time of the alleged injury the appellee was engaged in an act which was not in the usual course, trade, profession, or occupation of the Fulwiler Motor Company.

"(5) Because the uncontroverted evidence shows that appellee was not an employee of the Fulwiler Motor Company under the terms of the Employers' Liability Act, in that there was no contract for hire, express or implied, oral or written, between said appellee and said Fulwiler Motor Company, there being no consideration for such contract, appellee merely promising to do what he was already legally bound to do."

In support of the first ground, it is asserted that liability under the Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246—91) arises upon contract; that a contract to perform labor on Sunday, which does not come within any of the exceptions enumerated in section 300 of the Penal Code, and such labor is performed on Sunday is illegal and void; wherefore, there was no contract of employment between Tabor and the Fulwiler Motor Company; he was not an employee of said company, and could not recover compensation for his injuries under the Compensation Act.

The relation of employee, both at common law and under the Compensation Act, arises upon a contract express or implied. It is also well settled that an action cannot be maintained to enforce the contractual liability upon a contract to perform an act in violation of law. It was a purely contractual liability which was sought to be enforced in Osage Oil & Gas Co. v. Caulk (Tex. Civ. App.) 243 S. W. 551, and Publishers: Geo. Knapp & Co. v. Culbertson, 152 Mo. App. 147, 133 S. W. 55, cited by appellant. Both of these cases were to recover the compensation agreed to be paid for labor performed on Sunday in violation of law. But such is not the nature of the present action.

Appellant's contention amounts to this: Because the contract between the Fulwiler Motor Company and Tabor and the service rendered in pursuance thereof was in violation of article 299 of the Penal Code, which forbids labor on Sunday, the relation of employer and employee did not exist between the parties, wherefore there is no liability upon its part as an insurer under the Compensation Act. This contention in our...