Texas Employers Ins. Ass'n v. Reed

• Decision Date: 07 April 1941
• Docket Number: No. 5263.,5263.
• Citation: 150 S.W.2d 858
• Parties: TEXAS EMPLOYERS INS. ASS'N v. REED.
• Court: Texas Court of Appeals

150 S.W.2d 858

TEXAS EMPLOYERS INS. ASS'N v. REED.

No. 5263.

Court of Civil Appeals of Texas. Amarillo.

April 7, 1941.

Rehearing Denied May 12, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Hutchinson County; Jack Allen, Judge.

Compensation suit by J. W. Reed against Texas Employers Insurance Association by way of an appeal from an unsatisfactory award of the Industrial Accident Board for injuries received by plaintiff while in the employ of the Lone Star State Drilling Company. From a judgment for plaintiff for $1,571.12, the defendant appeals. On motion for rehearing.

Judgment reformed and affirmed.

Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.

Johnson & Oliphant, of Dallas, for appellee.

FOLLEY, Justice.

This is a compensation suit which was tried before a jury. On February 24, 1941, we affirmed the judgment of the trial court in an opinion of that date. The appellant has filed a vigorous motion for rehearing challenging our former holdings particularly with reference to the alleged failure of the claimant to sufficiently establish coverage. No issue was submitted or requested in this connection. In our former opinion we held that coverage was established by the proof as a matter of law thereby dispensing with the necessity of a jury finding. Upon more mature deliberation we have decided we were in error in this respect. We have reached the conclusion that the testimony in this regard presented only a controverted issue of fact. Regardless of this fact, however, we think the judgment should be affirmed for reasons which shall hereinafter appear. Our former opinion is withdrawn and this opinion substituted therefor.

The parties herein shall be designated as they were in the trial court.

This compensation suit was filed by the plaintiff, J. W. Reed, by way of an appeal from an unsatisfactory award of the Industrial Accident Board. The Lone Star State Drilling Company was the employer. The Texas Employers Insurance Association was the insurer and is the defendant herein. The plaintiff was injured on June 17, 1938, while working as a "roughneck" in the oil fields in Hutchinson County, Texas. The plaintiff sought compensation for total and permanent disability and in the alternative for such compensation as the facts might justify under the law.

In order to clarify the issues hereinafter discussed, we deem it expedient to give a resume of the findings of the jury. They were substantially as follows: (1) That plaintiff sustained accidental personal injuries to the lumbar region of his back on or about June 17, 1938; (2) that he received accidental personal injuries to his head on or about June 17, 1938; (3) that no total incapacity resulted from such injury or injuries; (4) that manifest hardship and injustice will otherwise result unless a lump sum award be made; (5) that whatever incapacity plaintiff may have referable to his back is not solely the result of independent disease, whether prior or subsequent; (6) that any disability in plaintiff's back was not caused solely by arthritis; (7) that plaintiff has or will sustain partial incapacity from injury received by him June 17, 1938; (8) that the beginning date of such partial incapacity was August 25, 1938; (9) that such incapacity is not permanent; (10) that such incapacity was or will be temporary; (11) that the ending date of such partial incapacity will be May 25, 1944; (12) that some aggravation of a pre-existing back condition by a sacro-iliac strain of August, 1936, was not a contributing factor in any present incapacity referable to plaintiff's back; (13) that such incapacity referable to his back is not a periodically recurring condition which can be traced from time to time since before June 17, 1938; and (14) that plaintiff's average weekly wage earning capacity during the period of partial incapacity is $7.50 per week. Upon this verdict the court rendered judgment allowing compensation for three hundred weeks at $19.16 per week from August 25, 1938; decreeing that plaintiff have a present recovery of $1,571.12 at the date of the judgment, the same being 82 weeks of accrued compensation, plus the interest thereon in the sum of $74.32; and for the remaining 218 weeks decreed a recovery in the sum of $19.16 per week commencing March 28, 1940. It is from this judgment the appeal is prosecuted.

The first contention of the defendant is with reference to plaintiff's alleged failure to sufficiently establish coverage. No question is presented in regard to plaintiff's pleadings in this respect or that there was any variance between his pleadings and proof. There was no issue submitted to the jury relative to coverage, no objections directed to the court's charge on account of such omission and no request made for such issue. The contention of the defendant is based upon the asserted insufficiency of the evidence to show coverage and the absence of the jury finding thereon which the appellant asserts vitiates the judgment in behalf of the plaintiff.

The plaintiff alleged that on or about the 17th day of June, 1938, he was employed by the Lone Star State Drilling Company and that his employer was a subscriber under the Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., with a policy of insurance in the defendant company. No allegations were made as to the nature of the concern for which the plaintiff worked, that is, whether it was a corporation or a partnership or an individual doing business under a trade name. The defendant did not specially except to the petition in any particular, it having filed only a general demurrer and general denial.

The gravamen of defendant's complaint in regard to the asserted insufficiency of the evidence is by reason of the alleged discrepancy between the recitals of the insurance policy and the testimony of the plaintiff and F. R. Fortney, a witness for the defendant. The insurance policy, which was introduced in evidence, showed on its face to have been issued by the defendant to the "Lone Star State Drilling Company" of Amarillo, Texas, which, under the declarations of the policy, was denominated a co-partnership composed of Bob Murphy and Guss Irvin. The plaintiff testified that at the time of his injury and for about three years prior thereto, he was working for Bob Murphy, who was doing business under the trade name of "Lone Star State Drilling Company". Fortney testified that he was working as a driller for the same concern which he denominated as the "Lone Star State Drilling Company" and which he said was owned by Bob Murphy. The defendant contends that the testimony of these two witnesses shows they were working for a separate and distinct concern from that insured by the defendant and that such condition of the testimony presents a fatal defect in the proof as to coverage or raised a controverted issue of fact, which, in the absence of a jury finding thereon, renders the judgment fundamentally erroneous.

We are not in accord with the defendant's contention in this respect. The policy of insurance was issued April 23, 1938, which was less than two months before the plaintiff was injured. The stipulations of the policy are sufficient to constitute a prima facie showing that at the date of its issuance the Lone Star State Drilling Company was a co-partnership composed of Bob Murphy and Guss Irvin. It is further our opinion that if the testimony of the plaintiff and of Fortney, as above indicated, is contradictory of the terms of the policy, it does not conclusively destroy the presumption of the continued existence of the partnership. 32 Tex.Jur. 504, para. 180; Heatley v. W. P. Ponder & Sons et al., Tex.Civ.App., 40 S.W.2d 951; Brannin v. Wear-Boogher Dry-Goods Co., Tex.Civ. App., 30 S.W. 572, writ denied; Federal Petroleum Co. v. Cator et al., Tex.Civ.App., 255 S.W. 783. Neither of these witnesses pretended to reveal the nature of the concern operating under the name of "Lone Star State Drilling Company" nor was there any testimony on this question other than that detailed above. The testimony reveals that the plaintiff was in the employment of such concern at the time of his injuries and had been for a period of about three years prior thereto. There is no intimation from the evidence that Bob Murphy was engaged in any other business or that he was connected with any other concern. We think it would be unreasonable to presume that Murphy would operate two concerns of the same name at the same time, he alone being the owner of one of them and a partner with Irvin in the other. The evidence further reveals that immediately after the accident the foreman in charge of the Lone Star State Drilling Company sent the plaintiff to the physicians of the defendant company for examination and treatment. He was first sent to Dr. H. G. Wallace at Borger, Texas, for first aid treatment. The next day he was sent to Dr. B. M. Bellamy of Pampa, Texas, who treated him continually over a period of several weeks. Each of these doctors testified that he was a designated physician of the defendant company, that he made his report of the plaintiff's condition to the defendant and that defendant paid for the services rendered to the plaintiff. Thereafter, at the request of the defendant and its counsel, plaintiff submitted to further examinations by other physicians of the defendant company, some of whom appeared at the trial as witnesses in its behalf.

Under all the above circumstances we are of the opinion that at least a controverted issue of fact was raised with reference to coverage, which presents the further question as to whether or not the trial court, in the absence of a jury finding, was empowered to resolve this issue in support of the judgment.

Much has been written upon the construction of article 2190, R.C.S., Vernon's Ann.Civ.St. art 2190, with reference to the power of a trial judge in a trial before a jury to make findings of fact where the same are not...