Texas Employers' Ins. Ass'n v. Wylie
| Citation | 19 S.W.2d 595 |
| Decision Date | 11 May 1929 |
| Docket Number | (No. 12144.) |
| Parties | TEXAS EMPLOYERS' INS. ASS'N v. WYLIE et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Tarrant County; Frank Culver, Judge.
Action by the Texas Employers' Insurance Association against Mrs. M. C. Wylie and others to set aside an award of the Industrial Accident Board for death of Robert L. Wylie, employee of the Transcontinental Oil Company of Tarrant county. From the judgment, plaintiff appeals. Affirmed.
Leachman & Gardere, of Dallas, for appellant.
H. T. Cooper and Claude Spratling, both of Forth Worth, for appellees.
On April 4, 1928, Robert L. Wylie, an employee of the Transcontinental Oil Company of Tarrant county, while in the course of his employment as such employee, received injuries resulting in his death. He was engaged at the time of his death in stopping a leak in a tank car, loaded with gasoline or oil, and, while he was so engaged, said car was moved and ran over him and killed him. Said Transcontinental Oil Company, hereinafter called oil company, was a subscriber in the Texas Employers' Insurance Association, hereinafter called association, and his weekly wages were $18.46 a week, and, therefore, his beneficiary or beneficiaries were entitled to $11.08 a week for 360 weeks, said last amount being 60 per cent. of his average weekly wages, as provided by the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309). On June 18; 1928, the Industrial Accident Board of the state of Texas made and entered its final ruling and decision in the matter of Robert L. Wylie, deceased, and awarded the entire compensation to Mrs. M. C. Wylie, the mother of deceased. Wylie left a son, aged 22 years, who was married, but it appears that he was sick and dependent on his father for support. He also left a sister, unmarried, and aged about 42 years. She was also claiming to be a dependent. The Texas Employers' Insurance Association appealed from the award of the Industrial Accident Board to the district court of Tarrant county. The case was tried in the Seventeenth judicial district court of Tarrant county. The petition was filed June 9, 1928. Mrs. M. C. Wylie, the mother of deceased, Miss Mabel Wylie, the sister of deceased, and John Robert Wylie, a married son of deceased, and other relatives were made parties defendant. George Wylie, a brother of deceased, it was stated in the petition, was a resident of Bridgeport, Fairfield county, Conn. He could not be found, and was dismissed from the suit. Defendants other than Mrs. M. C. Wylie, Miss Mabel Wylie, and John R. Wylie filed a disclaimer, and were dismissed from the suit.
The trial court, the cause being tried without the intervention of a jury, gave judgment on August 24, 1928, in favor of the son, John R. Wylie, and judgment against the claims of Mrs. M. C. Wylie and Miss Mabel Wylie. The association and Mrs. M. C. Wylie and Miss Mabel Wylie excepted and gave notice of appeal to this court. Only the association has perfected its appeal.
The cause was tried upon practically an agreed statement of facts. The plaintiff below and appellant here makes no contention that the amount of the award by the district court, to wit, $3,130.89, the lump sum found by the court to be due, was not in fact due, nor do they in fact contest the fact that the beneficiaries under the law were not entitled to said judgment. But it is specially urged that at least Mrs. M. C. Wylie, the mother of deceased, is entitled to one-half, or at least a part, of said judgment. The evidence shows that she lived with her son, and that he supported her. The evidence further shows that the mother owned a farm in Wise county consisting of 150 acres; that said farm had not been rented during the past few years, there being only 75 acres in cultivation, but that it was rented the year of the trial, though she had not yet received any rent from it. The evidence further shows that she got some $3,000 life insurance at the death of her son; that she had loaned a small part of this to her grandson for his support. The evidence further shows that Miss Mabel Wylie was probably a dependent of her brother, as she lived with him and he supported her. But, as neither she nor her mother have perfected their appeal, and are not complaining here of the judgment rendered, and appellant in its brief makes no contention that she was a dependent and entitled to a part of the award, she will not be noticed further in the discussion of this case.
Opinion.The ground of complaint is that article 8307, § 6a, Revised Civil Statutes of 1925, provides:
Under this statute, the association, having paid the compensation awarded to the beneficiaries, would be entitled to a right of action against the Texas & Pacific Railway Company, whose negligence, it is claimed, was the immediate cause of the death of the deceased, and said association could recover from the railway company at least such amount as the association had paid to the beneficiaries. It is urged that Mrs. M. C. Wylie and probably Miss Mabel Wylie were also beneficiaries under the law, and that, if suit should be filed in the name of John R. Wylie, the son and sole beneficiary under the judgment of the district court, then Mrs. M. C. Wylie and probably Miss Mabel Wylie could join in the suit and require a division of any judgment recovered; that by reason of certain facts not necessary to here mention, upon a suit by the association against the railway company in the name of John R. Wylie, or in the name of the association, in part for the benefit of John R. Wylie, as the statute provides, the part recovered for the son would not be as large as in ordinary cases, and that the right of subrogation given by article 8307, § 6a, would be...
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