Texas Employers' Ins. Ass'n v. Fort Worth & D. C. Ry. Co.

• Citation: 181 S.W.2d 828
• Decision Date: 19 June 1944
• Docket Number: No. 5634.,5634.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. FORT WORTH & D. C. RY. CO.
• Court: Texas Court of Appeals

Page 828

181 S.W.2d 828

TEXAS EMPLOYERS' INS. ASS'N v. FORT WORTH & D. C. RY. CO.

No. 5634.

Court of Civil Appeals of Texas. Amarillo.

June 19, 1944.

Appeal from District Court, Wilbarger County; C. Y. Welch, Judge.

Suit by the Texas Employers' Insurance Association against the Fort Worth & Denver City Railway Company for attorney's fees and amount of workmen's compensation paid an employee of another employer by plaintiff as the employer's insurance carrier, for injuries allegedly resulting from defendant's negligence, wherein case was submitted to trial court without a jury, and parties made stipulation as to reasonable attorney's fees. From a judgment for plaintiff for an amount less than the amount sued for, plaintiff appeals.

Judgment affirmed.

T. R. Boone, of Wichita Falls, and Curtis Renfro, of Vernon, for appellant.

Barwise & Wallace, of Fort Worth, and Storey, Storey & Donaghey, of Vernon, for appellee.

HEARE, Justice.

Texas Employers Insurance Association, the carrier of workmen's compensation insurance for Vernon Cotton Oil Company, employer, instituted this suit against the Fort Worth & Denver City Railway Company for $1596.86 plus $650, attorneys' fees, alleging that Jimmie Grimes, an employee of Vernon Cotton Oil Company, was injured while in the course of his employment by reason of the negligence of the railway company in maintaining a defective freight-loading platform in Vernon, Texas; that the insurance carrier had paid to the employee, or for his benefit, the amount of $1596.86, as benefits under the Workmen's Compensation Law; and that the third party had full knowledge of such payments and of the subrogation rights of the insurance carrier.

The insurance carrier also sought to predicate recovery from the railway company (which we shall also refer to as third party) on the following allegation: "Plaintiff would further show the court that thereafter, in utter disregard of plaintiff's rights in this matter, towit: on or about the first of July, A.D. 1942, the Railway Company sought to settle with the said Jimmie Grimes for the liability that they owed him over and above the sum of $1596.86, and did settle with said Claimant for his rights in the matter, that had not previously been assigned to this Plaintiff, by paying him an additional sum of $300.00 and, hence, the Defendant became liable to this Plaintiff for the sum of $1596.86."

The railway company pleaded a denial of injury, negligence of the employee, and a denial of negligence on the part of the railway company. It further pleaded that if Grimes was suffering any disability, it was due to disease rather than injury. It admitted the payment of $300 to Grimes and admitted liability to the insurance carrier in that amount, plus a reasonable attorney's fee, and tendered the same into court, alleging that it had theretofore made tender of such amount to the insurance carrier but that such tender had been refused.

The case was submitted to the trial court without a jury. The parties stipulated that one third of any amount recovered by the insurance carrier should be included in the judgment as a reasonable attorney's fee. The trial court entered judgment in favor of the insurance carrier for the sum of $300, plus an additional amount of $100 as attorney's fee, and on request of the appellant, filed findings of fact and conclusions of law.

The fact findings of the trial court were to the following effect: The railway company had a loading platform in Vernon for the use of shippers. Jimmie Grimes, an employee of Vernon Cotton Oil Company, together with other employees, took several bales of cotton to this loading platform on November 25, 1941, and unloaded them thereon. Thereafter, Grimes was walking across the platform when he stepped on a board which broke or gave way, causing him injury. At the time of his injury Grimes had no business on the platform in connection with his work for his employer and it was not necessary for him to have been on the platform. Damages attributable to the injury suffered by Grimes amounted to $750, plus doctors' bills, hospital bills, and a reasonable attorney's fee to the extent of one third of the recovery. It was the duty of the railway company, under the existing tariff, to load the cotton from the platform into the cars for shipment. The railway company did not know "the board on the platform was weak or in any way damaged" prior to the time Grimes was injured. The railway company made almost daily inspection of the platform to ascertain its condition and had inspected the platform not more than two days before the injury, possibly the day before. The railway company was not guilty of negligence in the manner and mode of the maintenance and construction of the platform. Grimes' employer was carrying workmen's compensation insurance with the Texas Employers' Insurance Association. The railway company, with knowledge of the settlement that had been made by Texas Employers' Insurance Association, made a settlement with Grimes, paying him $300, and took a release from him.

The trial court concluded, as a matter of law, that the insurance carrier plaintiff was entitled to judgment against the railway company for the sum of $300, being the amount the railway company had theretofore paid to Jimmie Grimes.

The insurance carrier excepted to only one finding of fact by the court, namely, Number Five, to the effect that it was not necessary for Grimes to have been on the platform and that he had no business thereon in connection with his work for his employer.

The appellant presents five points of error, which may be grouped into two controlling issues. The appellant contends, first, that under the law the undisputed evidence convicts the railway company of negligence in the manner and mode of maintenance and construction of the platform; and, secondly, that by reason of the appellee having made a settlement with the employee, it became liable to the appellant for the full amount of the appellant's subrogated claim as insurance carrier.

The law requires railroad companies to maintain suitable freight depots and buildings for receiving, handling, storing, and delivering all freight handled by such roads. Article 6498, R.C.S. 1925. Moreover, the Railroad Commission is charged with the duty of requiring the various railroads to keep and maintain adequate and suitable freight depots and buildings for the receiving, handling, storing, and delivering, of all freight handled by such roads. Article 6448, Section 10, R.C.S. 1925. Grimes was an invitee on the premises and the railway company was bound to use ordinary care to save him from injury while upon the premises. Missouri, K. & T. Ry. Co. of Texas v. Kinslow, Tex.Civ.App., 172...