Texas Indemnity Ins. Co. v. Hubbard

• Citation: 138 S.W.2d 626
• Decision Date: 07 March 1940
• Docket Number: No. 2247.,2247.
• Parties: TEXAS INDEMNITY INS. CO. v. HUBBARD.
• Court: Texas Court of Appeals

138 S.W.2d 626

TEXAS INDEMNITY INS. CO. v. HUBBARD.

No. 2247.

Court of Civil Appeals of Texas. Waco.

March 7, 1940.

Rehearing Denied April 4, 1940.

Appeal from District Court, Nineteenth District, McLennan County; R. B. Stanford, Judge.

Suit under the Workmen's Compensation Act by Fannie Hubbard, for herself as the wife of L. Hubbard, deceased, and as next friend for a minor, Louis H. Hubbard, to set aside an award of the Industrial Accident Board in favor of the Texas Indemnity Insurance Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Sleeper, Boynton & Kendall, of Waco, and Webster Atwell, of Dallas, for appellant.

George Clark and Clint Allen, both of Waco, for appellee.

TIREY, Justice.

This is a workmen's compensation case. Plaintiff, Fannie Hubbard, brought this suit for herself as the wife of L. Hubbard, deceased, and as next friend for a minor, Louis H. Hubbard. Plaintiff alleged that she was the wife of the deceased, L. Hubbard and that Louis H. Hubbard was a minor, seventeen years of age, and was the illegitimate child of L. Hubbard, deceased; and that she and the said minor were the sole heirs at law of L. Hubbard, deceased; that there was no administration upon the estate of L. Hubbard, deceased, and that none was necessary. Plaintiffs alleged that they were entitled to have the defendant redeem its liability in a lump sum, and, among other things, prayed for such relief, and, in addition thereto, asked for judgment apportioning to plaintiffs said recovery. The cause was tried by a jury and the award of the jury was favorable to plaintiffs, including lump sum award. In addition to the jury findings, the court found in his judgment that the plaintiff, Louis H. Hubbard, was an illegitimate child, and not entitled to recover either as an heir at law or as a beneficiary under the Workmen's Compensation Act in this state, and further found that Fannie Hubbard was the sole heir at law of the deceased, L. Hubbard, and the sole beneficiary under the Workmen's Compensation Act. The court, on the verdict of the jury and this finding, awarded to Fannie Hubbard the entire amount found by the jury. The court further decreed that Louis H. Hubbard, minor, suing herein by Fannie Hubbard as next friend, take nothing by his asserted cause of action against Texas Indemnity Insurance Company. No exception was taken to the judgment entered against the minor. The defendant has perfected its appeal from the judgment entered against it in favor of the plaintiff, Fannie Hubbard. The supersedeas bond is payable to Fannie Hubbard only.

Appellant's first proposition is: "The trial court erred in overruling and not sustaining the special exceptions numbered 2, 3, 4, 5 and 6 of defendant because said special exceptions were levied to conclusions plead by the plaintiff and such allegations were not based upon factual allegations." We have carefully considered this proposition, and are of the opinion that the plaintiffs' pleading was a sufficient statement of the cause of action for admission of proof as to the nature and scope of deceased's employment. See Southern Surety Co. v. Weaver, Tex.Com.App., 273 S.W. 838, 840, par. 1. Nor was it necessary to name the agent of the Southland Ice Company who employed the deceased. Jackson v. Dickey, Tex.Com.App., 281 S. W. 1043, 1044. Moreover, a large measure of discretion is vested in the trial court in this regard, and, in the absence of a showing of abuse of discretion or injury resulting from the ruling, the trial court's ruling will not be disturbed. Constitution Indemnity Co. of Philadelphia v. Armbrust, Tex.Civ.App., 25 S.W.2d 176, 180, pars. 9 and 10, writ refused; Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822, 825, par. 5; Rule 62a of Courts of Civil Appeals. Appellant's first proposition is overruled.

Appellant next complains that the court erred in placing Raymond Dailey, the engineer in charge of the work which the deceased was doing, under the rule and excluding him from the courtroom. It is a well established rule that permitting witnesses to remain in the courtroom or excluding them under the rule is a matter within the sound discretion of the trial judge and not subject to a reversal in the absence of a showing of abuse of discretion. Gulf, C. & S. F. R. Co. v. Bruce, Tex.Civ.App., 24 S.W. 927, par. 1; St. Louis S. W. Ry. Co. v. Cox, Tex.Civ.App., 221 S.W. 1043, 1044, par. 4; Southland Greyhound Lines v. Matthews, Tex.Civ. App., 74 S.W.2d 713, 716, pars. 9 and 10; Rule 62a, Court of Civil Appeals, 149 S.W. X; 5 C.J.S., Appeal and Error, § 1610, p. 510. Appellant's second proposition is overruled.

Appellant next contends that the undisputed evidence shows that employee was not engaged in the usual course of the trade, business, profession or occupation of his employer within the meaning of R. S. art. 8309, sec. 1, as amended, Vernon's Ann. Civ.St. art. 8309, § 1, and that the trial court erred in not granting its motion for an instructed verdict. The evidence shows that the employer, Southland Ice Company, was a corporation engaged in the business of manufacturing and selling ice, and that it owns, maintains and operates an ice plant on Elm Street in the city of Waco, as well as other plants situated elsewhere in Texas. The employer purchased the old ice cans in place at the Robinson Ice Plant in Waco, which plant was no longer in operation. The employer elected to remove the cans out of the old tank and haul them away to its various plants. Ice cans are used and needed for the manufacture of ice, and that from time to time in the ordinary operation of the business, it is necessary for these cans to be replaced, and it appears that the ice cans were bought by the employer for replacement purposes. The evidence shows that the manager of the local plant sent the engineer of the local plant to the old Robinson Ice Plant to superintend the removal of the ice cans from the tank and to employ the men to do the job on or about June 23, 1938. There is evidence that the engineer hired plaintiff's husband to help remove the ice cans and that he became overheated and suffered a heat stroke, which incapacitated him for approximately three months, and as a result of which he died on December 23, 1938. The general rule is that whether the employment of a workman injured while engaged in a particular task is within the usual course of the business of his employer is ordinarily a question of fact. To make such an issue a question of law, the testimony must not only be without contradiction but must be so conclusive that reasonable minds cannot differ as to its effect. Croswell v. Commercial Standard Insurance Co., Tex.Civ.App., 56 S.W.2d 918, 920, par. 2. Moreover, the evidence was uncontroverted that it was necessary for the employer to make replacements of these ice cans at its various plants from time to time as and when they were needed, and it appears to us that the work deceased was employed to do was in no sense unusual in the business carried on by the employer. The employer would certainly have the right to buy such equipment it desired to be used for replacement purposes or otherwise in the conduct of its business. We think the facts of this case place it well within the rule announced by the Commission of Appeals in Wells v. Lumbermen's Reciprocal Association, 6 S.W.2d 346. See, also, Traders & General Ins. Co. v. Powell, Tex.Civ.App., 82 S.W.2d 747; Id., 130 Tex. 375, 110 S.W.2d 559; and Hartford Accident & Indemnity Co. v. Clark, Tex.Civ.App., 126 S.W.2d 799. Moreover, in the case of Texas Employers Insurance Ass'n v. Wright, 128 Tex. 242, 97 S.W.2d 171, 173, the Commission of Appeals announced this doctrine: "An employee injured when performing at his employer's direction work outside the scope of his usual duty is entitled to compensation, provided the work in which he is engaged when injured is within the usual course of the employer's business." Under the foregoing rule, it occurs to us to be a sound doctrine that when any manufacturing establishment, in the exercise of its discretion, buys secondhand machinery or other equipment, to be used by it in its manufacturing business, that it is acting within the usual course of its business, and persons employed by it in the assembling of the same are employed within the usual course of the employer's business. A careful reading of the emergency clause in connection with the amendment with reference to section 1 of Art. 8309, as enacted by the 45th Legislature, chap. 262, p. 537, Vernon's Ann.Civ.St. art. 8309, § 1, removes all doubt in our mind as to the matter under discussion. Surely the Legislature, by the amendment referred to, intended to liberalize the act and to remove and eliminate the extremely technical construction that had been placed by our courts on the Act in question. In Huffman v. Southern Underwriters, Tex.Sup., 128 S.W.2d 4, 9, the Supreme Court, in discussing our Workmen's Compensation Act, said: "We should also keep in mind the universal rule that compensation laws are liberally construed." We follow that rule. Appellant's third proposition is overruled.

We have considered appellant's proposition No. 4, which complains of the court's definition of "usual course of business" and find no merit in same. It is overruled. Wells v. Lumbermen's Reciprocal Ass'n, Tex.Com.App., 6 S.W.2d 346.

Appellant seriously complains of the action of the trial court in the additional instructions that the trial court gave to the jury after the cause had been submitted and after the jury had entered upon its deliberations. We have carefully reviewed the bill of exception and the qualification of the trial court and are of the opinion that said assignment does not present error. The record shows that the jury reduced their questions to writing and same were submitted to the court and the court prepared his answers and instructions to said request and submitted them to counsel and...