Traders & General Ins. Co. v. Garry

• Decision Date: 09 October 1940
• Docket Number: No. 7494.,7494.
• Citation: Traders & General Ins. Co. v. Garry, 143 S.W.2d 370, 135 Tex. 290 (Tex. 1940)
• Court: Texas Supreme Court
• Parties: TRADERS & GENERAL INS. CO. v. GARRY.

143 S.W.2d 370

TRADERS & GENERAL INS. CO. v. GARRY.

No. 7494.

Supreme Court of Texas.

October 9, 1940.

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

Suit under the Workmen's Compensation Act by Roy Garry, employee, to set aside an award of the Industrial Accident Board in favor of the Traders & General Insurance Company, insurance carrier of Mose Sampson. To review a judgment of the Court of Civil Appeals, 118 S.W.2d 340, affirming a judgment of the trial court granting relief, the defendant brings error.

Judgments of the trial court and of the Court of Civil Appeals affirmed.

Lightfoot, Robertson & Gano, and Dan P. Johnston, all of Fort Worth, and Barnes & Barnes, and J. Austin Barnes, all of Beaumont, for plaintiff in error.

Shivers & Keith and Quentin Keith, all of Port Arthur, for defendant in error.

SHARP, Justice.

This is a compensation case. The case was submitted to the jury on special issues. Roy Garry recovered a judgment in the trial court against Traders & General Insurance Company for the sum of $2,501.56, to be paid in a lump sum. The Court of Civil Appeals at Beaumont affirmed the judgment of the trial court. 118 S.W.2d 340.

We will designate the plaintiff in error as Insurance Company and the defendant in error as Garry.

This Court granted a writ of error, based substantially on the following propositions: That Garry brought this suit on the ground that he was an employee of Mose Sampson, and alleged that he was injured while working as an employee of Mose Sampson; that the undisputed evidence shows that he was injured while working for Mose Sampson, and that there was no evidence that he ever presented a claim to the Industrial Accident Board asking for compensation as an emplovee of Mose Sampson; that the undisputed evidence shows that the notice of injury and the claim for compensation based on the injury alleged a claim and presented a claim based upon the alleged fact that he was an employee of the Sampson Iron & Supply Company; that while the undisputed evidence shows that the only claim originally presented by Garry and heard by the Industrial Accident Board was a claim based upon the alleged fact that he was an employee of the Sampson Iron & Supply Company, as a matter of law Garry failed to make out a prima facie case and failed to establish jurisdiction of the trial court; and that the Insurance Company's motion for an instructed verdict should have been granted, or the suit dismissed.

In answer to the contentions made by the Insurance Company, Garry contends, in substance: That the undisputed evidence shows that he sustained an accidental injury in the course of his employment with Mose Sampson, which resulted in disability; that the employer and the Insurance Company both had actual notice of said injury and the accompanying disability; that the Traders & General Insurance Company having paid Garry eight weeks' compensation, the Industrial Accident Board made and entered an award reciting that after due notice to all persons there came on to be considered the claim for compensation by Garry against the Insurance Company, insurer of Mose Sampson; that the undisputed testimony of Mose Sampson shows that he had a policy of workmen's compensation with the Traders & General Insurance Company which covered Garry; that the Insurance Company answered only by general denial, raised no objection to the introduction of the testimony, and made no complaint in the motion for new trial, but only asserted that there was a variance for the first time upon appeal; and that the Court of Civil Appeals did not err in holding that the trial court had jurisdiction of the appeal from the final award of the Industrial Accident Board.

Garry pleaded that on, or about, the 30th day of September, 1936, he sustained a personal injury in the course of his employment by "Mose Sampson, doing business as Sampson Iron & Supply Company, at Port Arthur." He further alleged that within thirty days from the date of such personal injury thus sustained the Traders & General Insurance Company had due and sufficient notice of said injury, or in the alternative, that the defendant "had actual knowledge of said injury and accepted liability thereunder, and paid unto the plaintiff certain sums due by virtue of the compensation insurance laws of the State of Texas, thereby waiving any defect in such notice." The Industrial Accident Board made its final ruling, decision, and award on March 9, 1937, reciting that, "After due notice to all parties, came on to be considered by the Industrial Accident Board claim for compensation by Roy Garry against Traders & General Insurance Company." The award made by the Industrial Accident Board was in Cause No. W-1714, "Roy Garry, Employee, v. Mose Sampson, Employer, Traders & General Insurance Company, Insurer."

In the opinion of the Court of Civil Appeals, written by Chief Justice Walker, is set out in detail the steps taken before the Industrial Accident Board with reference to Garry's claim, and that court held that the District Court had jurisdiction of the case, and stated the conclusions of that court as follows :

"On the undisputed facts, appellee at the time of...