Texas Employers' Ins. Ass'n v. James

• Decision Date: 22 June 1938
• Docket Number: No. 7204.,7204.
• Citation: 118 S.W.2d 293
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. JAMES.
• Court: Texas Supreme Court

Page 293

118 S.W.2d 293

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

No. 7204.

Supreme Court of Texas.

June 22, 1938.

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

Suit under the Workmen's Compensation Act by Raymond James to set aside an award of the Industrial Accident Board in favor of the Texas Employers' Insurance Association. Judgment for defendant notwithstanding a verdict favorable to plaintiff on special issues was reversed by the Court of Civil Appeals, 98 S.W.2d 425, and defendant brings error.

Judgment of the Court of Civil Appeals reversed and judgment of the district court affirmed.

W. O. Head, of Dallas, and Scarborough & Ely and Dallas Scarborough, all of Abilene, for plaintiff in error.

Grisham Bros., of Eastland, and J. A. Lantz, of Tyler, for defendant in error.

Wood & Wood and A. E. Wood, of Austin, amici curiæ.

GERMAN, Commissioner.

This suit was brought under the Compensation Laws of this State, Vernon's Ann.Civ.St. art. 8306 et seq. The trial in the district court resulted in judgment in favor of plaintiff in error, the insurance carrier, notwithstanding the verdict of the jury, which, in some respects, was favorable to defendant in error, Raymond James, the compensation claimant. He will be referred to as plaintiff, and the Insurance Association will be designated defendant. The judgment of the trial court was reversed by the Court of Civil Appeals. 98 S.W.2d 425. A brief narrative statement will furnish background for discussion of the controlling legal question.

During June and July, 1930, plaintiff was an employee of MacPherson Construction Company, a corporation having an office in Dallas, Texas, which was engaged in the business of laying pipe lines. He worked for said Company a short time as a tractor driver in Gaines and Andrews Counties, Texas. About the time the work there terminated, the foreman of MacPherson Construction Company spoke to him and other workers about going to the State of Pennsylvania to engage in like work there. The Construction Company carried compensation insurance for the benefit of its Texas employees with the defendant Texas Employers' Insurance Association. The same Company was engaged in business in Pennsylvania, and in that State carried compensation insurance for its employees there with United States Fidelity & Guaranty Company. The employment for work in Texas was completely terminated about July 21, 1930. About the time same was completed, the MacPherson Construction Company, through its authorized foreman, made a contract with plaintiff to perform work for the Company in Pennsylvania. The jury found that the contract "for the performance of the work in Pennsylvania" was entered into between the parties in the State of Texas.

While the contract of employment was made in this State, the employment in fact did not begin until plaintiff reached the State of Pennsylvania, sometime about August 1, 1930. On August 11, 1930, while working for said MacPherson Construction Company in the State of Pennsylvania, and while in the course of his employment there, plaintiff received severe injuries, resulting in total permanent disability.

On September 22, 1930, plaintiff and the United States Fidelity & Guaranty Company entered into a written agreement upon forms furnished by the Workmen's Compensation Bureau of the Pennsylvania Department of Labor and Industry, which agreement is designated "Agreement for Compensation for Disability." This agreement shows MacPherson Construction Company of Philadelphia, Pennsylvania, as employer, Raymond E. James as employee, occupation as tractor driver, date of accident as August 11, 1930, the nature of the injury, and rate of compensation as $15 per week for an indefinite number of weeks beginning August 18, 1930. It appears that the rate of $15 per week was the rate applicable for total disability under the laws of Pennsylvania. This agreement was approved October 9, 1930, by "Bureau of Workmen's Compensation." Under this agreement, plaintiff received weekly compensation in the amount of $600, and until a lump sum settlement was made as hereinafter set out. United States Fidelity & Guaranty Company furnished plaintiff with hospitalization and medical treatment in Pennsylvania until about January 1, 1931, when he was sent to Dallas, Texas. He was there furnished lodging and hospitalization by said United States Fidelity & Guaranty Company until settlement was made. Shortly after reaching Dallas, plaintiff was approached by a firm of attorneys and he entered into an agreement with such attorneys to obtain a lump sum settlement of his claim with the United States Fidelity & Guaranty Company. The attorneys apparently did not make much progress, and sometime in April or May, 1931, plaintiff called upon them with the demand that they get results or release him from his contract. Said attorneys then effected a settlement with the United States Fidelity & Guaranty Company for the sum of $1500, and plaintiff signed a "final settlement receipt" upon forms furnished by the Workmen's Compensation Bureau of the Pennsylvania Department of Labor and Industry. This showed plaintiff as employee, MacPherson Construction Company of Philadelphia, Pennsylvania, as employer, and the number of the compensation agreement which had been executed as above mentioned. This receipt recited payment of the total sum of $2100 in full and final settlement of compensation due under the Workmen's Compensation Law of Pennsylvania, 77 P.S.Pa. § 1 et seq., for the disability suffered by plaintiff. This settlement receipt was subject to review by the Workmen's Compensation Board.

Apparently the making of the agreement for compensation, as well as the final settlement, subject to review by the Workmen's Compensation Board, was authorized under the Compensation Laws of the State of Pennsylvania. However, as to the validity of same we are not concerned. For their services in making the settlement plaintiff paid the Dallas attorneys a fee, and there is nothing to show that they in any way represented either the United States Fidelity & Guaranty Company or MacPherson Construction Company.

In June, 1934, more than three and one-half years after his injury, plaintiff filed claim with the Industrial Accident Board of the State of Texas, claiming compensation for total disability as against defendant, the insurance carrier in Texas of the employees of MacPherson Construction Company. The theory of plaintiff appears to be that as the contract of hire was made between him and MacPherson Construction Company in the State of Texas, although for services to be performed wholly in the State of Pennsylvania, he became entitled to compensation under and in accordance with the laws of this State, and not under the laws of the State of Pennsylvania. His position appears further to be that the payment of compensation by the United States Fidelity & Guaranty Company as carrier of insurance in Pennsylvania was purely voluntary upon its part, it being under no legal obligation to make such payments—plaintiff being under a contract of hire made in Texas—and therefore the acceptance of those benefits in no way impaired his right to compensation from the Texas carrier under the laws of this State. He sought to excuse the great delay in filing claim with the Industrial Accident Board in Texas by claiming that he was under the belief all the time that the United States Fidelity & Guaranty Company was the insurance carrier in Texas, and by claiming that he was advised by the Dallas attorneys that the settlement made with the United States Fidelity & Guaranty Company was a full, final and complete settlement for his disability, although not approved by the Industrial Accident Board of Texas, and that he remained under this impression until about June, 1934, when for the first time he was advised that his settlement was not valid, and that he was entitled to compensation under the laws of Texas, to be paid by the insurance carrier in this State.

Several interesting questions of law have been argued with much force. One proposition so urged is that as plaintiff had pursued his remedy for compensation under the laws of Pennsylvania, he had no right to claim compensation under the laws of Texas from the insurance carrier in this State. At the time plaintiff was injured the compensation law of this State provided as follows:

"If an employee who has been hired in this state sustain injury in the course of his employment, he shall be entitled to compensation according to the law of this state even though such injury was received outside of the state; * * * provided * * that no recovery can be had by the injured employee...