Texas Employers' Ins. Ass'n v. Volek, 1707-6201.

• Decision Date: 14 March 1934
• Docket Number: No. 1707-6201.,1707-6201.
• Citation: 69 S.W.2d 33
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. VOLEK et al.
• Court: Texas Supreme Court

Page 33

69 S.W.2d 33

TEXAS EMPLOYERS' INS. ASS'N v. VOLEK et al.

No. 1707-6201.

Commission of Appeals of Texas, Section A.

March 14, 1934.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by the Texas Employers' Insurance Association to set aside an award of compensation by the Industrial Accident Board to Mike Volek and wife, claimants, for the death of Frank Volek, an employee of the J. S. Abercombie Company. A judgment for claimants was affirmed by the Court of Civil Appeals [44 S.W.(2d) 795], and plaintiff brings error.

Affirmed.

Sewell, Taylor, Morris & Garwood, of Houston, for plaintiff in error.

C. H. Chernosky and A. B. Gerland, both of Houston, for defendants in error.

CRITZ, Judge.

This suit was filed in the district court of Harris county, Tex., by Texas Employers' Insurance Association, to set aside an award of the Industrial Accident Board of this state in favor of Mike Volek and wife, Rosa Volek. Trial in the district court resulted in a judgment for the Voleks. This judgment was affirmed by the Court of Civil Appeals. 44 S.W. (2d) 795. The association brings error.

This case involves a proper construction of the extraterritorial provisions of our Workmen's Compensation Law, and its application to the facts of this case. It therefore becomes necessary to make a fairly comprehensive statement of the facts.

Mike and Rosa Volek are the surviving parents of Frank Volek, deceased. Frank Volek was injured and thereby instantly killed on December 21, 1928, while in the course of his employment as a driller's helper, or pipe racker, for J. S. Abercombie Company, a private corporation, on an oil well being drilled by such company in Calcasieu parish, in the state of Louisiana. Frank Volek was unmarried, and his parents are entitled to compensation for his death if the facts bring this case within the extraterritorial provisions of our Compensation Law as it existed at the time of his death.

The Abercombie Company is a private Texas corporation. During all of the times involved here it was engaged in the business of drilling oil wells in Texas and other states, including Louisiana. It protected its Texas employees by an insurance policy issued by Texas Employers' Insurance Association, and such policy was sufficient in form and substance to cover its employees working outside this state who are contemplated by the extraterritorial provisions of our Compensation Law. Also Abercombie Company carried compensation insurance in another company covering its employees in Louisiana. Mike and Rosa Volek have made no claim for compensation in Louisiana, but have elected to claim under the Texas law. It appears also that Frank Volek, at the time he was killed, was carried on the rolls of Abercombie Company as a Louisiana employee, and was not reported to the Texas Employers' Insurance Association as its employee.

From April 1, 1928, until October 3, 1928, Frank Volek was in the employ of Abercombie Company as a driller's helper or pipe racker. During this time he worked under one J. R. Bass, under a contract of hire from day to day. During such time he was engaged in drilling a well near Damon, in Fort Bend county, Tex. The well near Damon was completed about October 3, 1928, and the Abercombie Company, having no other well for this crew to drill, laid all the men off, including Frank Volek. Frank Volek remained idle from October 3, 1928, until about October 12, 1928. During this time he was paid no wages by Abercombie Company. At some time between October 3, and October 12, 1928, Abercombie Company contracted to drill an oil well in Calcasieu parish, in the state of Louisiana. On October 12, 1928, Frank Volek was given one day's work by Abercombie Company cleaning up around the rig and boxing tools preparatory to the shipment of the rig and tools to the well site in Louisiana. On this latter date, while Frank Volek was engaged in the above work, he made a contract with Abercombie Company to continue his work on the Louisiana well. In this connection it appears that J. R. Bass, the duly authorized agent of Abercombie Company, made the statement to the men who had worked on the Damon well, including Frank Volek, that, if they would go to Louisiana, they would be given the same jobs that they had had on the well at Damon. In this connection we quote the following from the testimony of the witness, Lawrence E. Burris:

"On that day I heard John Bass and Frank Volek talking to each other. At this particular time I have in mind, there were present myself, G. W. Wisely, Roy Stevens, and Dickson, and, in fact, practically all the whole crew; I might not remember all of them right now.

"Mr. Bass wanted to know who all was going to Louisiana with the job down there. He said we would all go down there and have the same jobs back that we had there. He said that the rig was going to Louisiana, and we all had our same jobs there. He was talking to Frank Volek, Frank said he was going, and different ones named over who was going and who wasn't going, and he said: `All right, all that is not going, I will pay you all off here'. He wrote out checks for all that did not go, and he did not write checks for all that went."

From the above we conclude in favor of the judgment of the trial court that, while Frank Volek was an employee of Abercombie Company in Texas, it, through its duly authorized agent, made a contract with him to go to Louisiana and continue the same services for the company that he had performed in Texas. Frank Volek complied with his promise and reported for duty at the well in Louisiana about October 19 or 20, 1928. In this connection the record shows that he was allowed wages for the time he...