Traders & General Ins. Co. v. Rogers

• Citation: 119 S.W.2d 679
• Decision Date: 03 June 1938
• Docket Number: No. 13749.,13749.
• Court: Court of Appeals of Texas
• Parties: TRADERS & GENERAL INS. CO. v. ROGERS.

119 S.W.2d 679

TRADERS & GENERAL INS. CO. v. ROGERS.

No. 13749.

Court of Civil Appeals of Texas. Fort Worth.

June 3, 1938.

Rehearing Denied September 16, 1938.

Error from District Court, Tarrant County; Walter L. Morris, Judge.

Suit to set aside an award under the Workmen's Compensation Act to J. O. Rogers against Traders & General Insurance Company. To review a judgment of District Court awarding a lump sum settlement to plaintiff, defendant brings error.

Reversed.

Saunders & Williams, of Dallas, and Lightfoot, Robertson & Gano and Dan P. Johnston, all of Fort Worth, for plaintiff in error.

Houtchens & Houtchens, Ardell M. Young, and J. Harold Craik, all of Fort Worth, for defendant in error.

DUNKLIN, Chief Justice.

The Traders & General Insurance Company has prosecuted this appeal from a judgment in favor of J. O. Rogers, under the provisions of the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq. Rogers recovered a judgment for the sum of $7,398.39, as a lump sum settlement for total incapacity to work, as the result of two alleged injuries while working for the New York Bakery, and while repairing and replacing a set of floor scales, by welding one of the doors thereof in the dough-mixing room of the Bakery. The alleged injuries, for which he claimed compensation, were denominated as a wrench in his back and a heat stroke.

His claim for those injuries was presented to the Industrial Accident Board, and by that Board denied. An appeal was duly prosecuted from that order to the District Court, in which the judgment was rendered.

The insurance policy made the basis of plaintiff's suit was issued by the appellant on May 9th, 1933, and by its terms was due to expire on June 17th, 1934, and was in effect at the time of plaintiff's alleged injuries, on June 15th, 1934. The policy recited that it was in renewal of a former policy due to expire June 17th, 1933, at which date the renewal policy should become effective.

These stipulations appear in the policy: "Employer, George Kogan, d. b. a. New York Bakery; address, 513-15 Jennings Street, Fort Worth, Texas; occupation, bakers, clerical, chauffers and their helpers. * * * Present Insurer, Traders & General Insurance Company."

In plaintiff's second amended original petition, on which he went to trial, it is alleged that he was injured while in the discharge of the duties of his employment with New York Bakery, which was operated by George Kogan, individually, as its owner and operator. In an alternative count it is alleged that if plaintiff be mistaken as to the ownership of the bakery by George Kogan, then that said New York Bakery was a co-partnership, composed of George Kogan, Gus Kogan and John Bokoures; that the policy was intended by all parties to cover all employees of the New York Bakery, even though owned by said co-partnership; that the defendant was fully apprised of such ownership and was therefore estopped to claim its policy did not cover employees of the co-partnership. In reply thereto, the defendant filed a general denial, with specific allegations that the policy had been issued to George Kogan as an individual, d. b. a. New York Bakery, upon his application therefor, and denied that it had ever issued a policy to George Kogan, Gus Kogan and John Bokoures, d. b. a. New York Bakery, and had never authorized its agent to do so.

The Insurance Company was doing business in the City of Dallas. Oscar Seligman & Company, doing business in the City of Fort Worth, was its agent, to whom application for insurance was made. The following letter of instruction from the defendant to that agent, introduced in evidence, reads as follows:

                                        "June 15th, 1932
                "Oscar Seligman & Company
                "813 Texas National Bank Building
                "Fort Worth, Texas
                  "Reference: Compensation Insurance
                

"Gentlemen:

"1. Your Agency Contract with this company provides for the rate of commission you will receive on account of Workmen's Compensation Insurance which is credited to you.

"2. The Contract does not permit you to bind the Company on Workmen's Compensation Insurance risks.

"3. The Supplies sent you do not include Workmen's Compensation Insurance Policies — the supplies do include Applications for Workmen's Compensation Insurance Policies.

"4. Please understand liability of the Traders & General Insurance Company for Workmen's Compensation Insurance cannot be assumed by any agent whether in the form of verbal promise or written binder.

"5. Your authority, in so far as acceptance of Workmen's Compensation Insurance coverage by this company is concerned, extends only to the taking of information and the filing of this information on proper application forms with this office.

"6. Your clients should be unmistakably advised that the giving to you of information in no wise obligates the company.

"7. This letter is sent in duplicate. Please sign and return the original, keeping the copy for your own file.

                    "Yours very truly,
                        "W. B. Shoe, Vice President."
                

In answer to special issues, the jury found that on June 15th, 1934, the plaintiff, while working as an employee of the New York Bakery, sustained two injuries, in the course of his employment: First, to his back, and second, a heat stroke, as the result of which he was totally incapacitated to work for 144 weeks; that his employer had notice of his injuries when they were sustained; that he had not worked in the same employment for a year preceding his injuries; that the average weekly wage of other employees of the same class as plaintiff, who had worked for one year prior to the time plaintiff sustained his injuries, was $35 per week; and that manifest hardship and injustice will result to plaintiff if such compensation to which he is entitled is not paid to him in a lump sum; that the prior policy, which was renewed by the one in suit, was issued to George Kogan, doing business as the New York Bakery; and that all parties to the renewal contract intended that the renewal policy should cover the employees of the partnership known as the New York Bakery.

Upon these findings by the jury, judgment was rendered in plaintiff's favor for the sum of $7,395.39. Since the finding of $35 per week wages was $2.50 higher than the estimate of any witness, plaintiff offers to remit a sufficient amount of the recovery to cover such excess.

The testimony showed without controversy that George Kogan, Gus Gogan and John Bokoures were doing business as a co-partnership, under the firm name of New York Bakery.

The finding of the jury that it was the intention of all the parties to the contract that the policy of insurance was intended to cover all the employees of the partnership known as the New York Bakery, was not without sufficient support in the evidence, and in plaintiff's pleadings, as insisted by appellant.

Accordingly, under authority of the decision of this court in New Amsterdam Casualty Co. v. Harrington, 11 S.W.2d 533, in which a writ of error was dismissed by the Supreme Court, there is no merit in the contention that there was a fatal variance between the contract sued on and plaintiff's pleadings and the proof introduced. A former judgment in favor of Harrington was reversed by the Commission of Appeals, by reason of a variance between the plaintiff's pleadings and proof, as shown in 290 S.W. 726. It was pointed out that according to allegations in Harrington's petition, he was employed by Dr. L. F. Gragg, who carried the insurance policy on which the suit was based. But this was said: "The evidence showed that a copartnership composed of Gragg and others was the employer, and that Harrington was engaged by Gragg to work for the copartnership. And though the evidence, by reason of the notice given the Board by the casualty company, may show that the company by the issuance of the policy intended to provide for the payment of compensation to the employes of the copartnership, and that the policy was issued in the name of Gragg for the use and benefit of the copartnership and its employes, thereby in law making the copartnership the holder of the policy, yet there is no allegation contained in Harrington's pleadings to support a cause of action based on these facts."

Article 705 of Title 12 of the Penal Code of Texas, which was enacted for the protection of public health, was in force when plaintiff was employed. It reads: "No person, firm, corporation or common carrier, operating or conducting any hotel, cafe, restaurant, dining car or other public eating place, or operating any bakery or meat market, public dairy or candy factory in this State, shall work, employ or keep in their employ in or about any said place any person infected with or affected by any infectious or contagious disease, or work or employ any person to work in or about any said place who, at the time of his employment had not in his possession a certificate from some reputable physician of the county where said person is to be employed, attesting the fact that the bearer has been examined by such physician within one week prior to the time of employment, and that such examination discloses the fact that such person to be employed was free from any infectious or contagious disease; or fail to institute and have made a medical examination of all their employes at...