Texas Indemnity Ins. Co. v. Holloway
| Decision Date | 17 May 1930 |
| Docket Number | No. 12319.,12319. |
| Citation | 30 S.W.2d 921 |
| Parties | TEXAS INDEMNITY INS. CO. v. HOLLOWAY et al.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Bruce Young, Judge.
Action by the Texas Indemnity Insurance Company against W. E. Holloway and others to set aside an award made by the Industrial Accident Board in favor of defendants. From a judgment in favor of defendants, plaintiff appeals.
Reversed and remanded.
Goree, Odell & Allen and L. L. Gambill, all of Fort Worth, for appellant.
Clark & Clark, of Fort Worth, for appellees.
W. E. Holloway was an employee of the Magnolia Petroleum Company while that company was a subscriber, under the Workmen's Compensation Law, and carried an indemnity policy with the Texas Indemnity Insurance Company covering injuries received by the employees of the subscriber. A claim was filed with the Industrial Accident Board by Holloway for an injury alleged to have been sustained by him while performing the duties of his employment. An award was made by the board in favor of Holloway. The insurance company then brought suit in the district court of Tarrant county, Tex., to set aside the award so made by the Industrial Accident Board. In that suit Holloway and his attorneys were made parties defendants, and a trial of the case resulted in a judgment in favor of defendants, from which the insurance company has prosecuted this appeal.
While the insurance company was nominally plaintiff, Holloway was the real plaintiff in interest; his attorneys being parties only by reason of the fact that under the Workmen's Compensation Law they would be entitled to a part of the recovery by Holloway as an attorney fee for representing him. For convenience, Holloway will be hereinafter referred to as the defendant to the exclusion of the names of his attorneys.
In his pleadings, the defendant alleged that on or about December 12, 1926, during the course of his employment by the Magnolia Petroleum Company, he was engaged in driving a truck, and that while in the act of cranking the machine he sustained a rupture or hernia as the result of a strain in performing that act. It was further alleged that he suffered pain at the time of the rupture and on account thereof he was confined to his bed until about March 19, 1927, when an operation was performed on him for the hernia; that on June 28, 1927, he returned to work as a night watchman and worked in that capacity until August 19, 1927, when the condition of the hernia became such that he was unable to do any further work; and that prior to his said injury he had not suffered with the rupture or hernia in any degree. It was further alleged that he was totally and permanently incapacitated by reason of the injury; that at the time of his injury his average weekly wage was $32.92, and that he was therefore entitled to compensation at the rate of $20 a week for 401 weeks; that by reason of his financial condition and the condition of his health he was entitled to recover compensation in a lump sum, computed on that basis. Defendant further alleged that he had complied with the requirements of the law in giving notice of his injury and the filing of his claim for compensation. In the alternative, he further alleged that if he had not complied with those provisions of the law he had good reason for not having done so, in that immediately upon sustaining the injury he notified his employer thereof, and requested it to make out and file notice of the injury and his claim for compensation; that the employer promised so to do and defendant believed and relied upon that promise.
Defendant further alleged that plaintiff had knowledge of the promise so made by the Magnolia Petroleum Company; that the plaintiff was merely the tool of that company and that notice of his injury and claim for compensation to his employer was in legal effect binding upon the plaintiff; that plaintiff and said company had conspired with each other to bring about the failure of defendant to give notice to the plaintiff in order that such failure might bring about a defeat of the defendant's claim for compensation.
There was a further prayer for recovery of $317, which the defendant alleged he had paid out for medical and hospital bills.
The insurance company filed a general denial to Holloway's pleadings, and specially denied that he had sustained the alleged injury in the course of his employment, and specially denied that he had given any notice of the alleged injury to plaintiff or to the Magnolia Petroleum Company, or filed any claim thereon with the Industrial Accident Board; that by reason of such failure to file notice of the injury and claim for compensation, he had waived his right of compensation. The insurance company further alleged that the Magnolia Petroleum Company had paid the defendant his full salary for a portion of the time for which compensation was sought, and that the amount so paid should be allowed as a credit upon any claim for compensation against the insurance company.
The following are special issues submitted to the jury with findings thereon:
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