United Employers Casualty Co. v. Curry

Decision Date29 May 1941
Docket NumberNo. 11239.,11239.
Citation152 S.W.2d 862
PartiesUNITED EMPLOYERS CASUALTY CO. v. CURRY.
CourtTexas Court of Appeals

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Action by Joe Curry against the United Employers Casualty Company to set aside an award of the Industrial Accident Board in defendant's favor and recover compensation for total permanent incapacity resulting from an injury sustained by plaintiff in the course of his employment by C. W. Sternberg. Judgment for plaintiff, and defendant appeals.

Affirmed.

Will R. Saunders and Henry D. Akin, both of Dallas, for appellant.

Allen, Helm & Jacobs, of Houston, and Gillen, Francis & Gallagher, of Dallas, for appellee.

MONTEITH, Chief Justice.

This is an appeal in a workman's compensation suit brought by appellee, Joe Curry, to set aside an award of the Industrial Accident Board in favor of appellant, United Employers Casualty Company, and to recover compensation for total and permanent incapacity, alleged to have been the result of an injury sustained by him on November 26, 1939, in the course of his employment as a pipe line construction worker with C. W. Sternberg, who carried compensation insurance with appellant.

Appellant answered by general demurrer and general denial.

In answer to special issues submitted, the jury found, in effect, that appellee had sustained an injury to his back on or about November 26, 1939, in the course of his employment with C. W. Sternberg; that the injury so received was a producing cause of his incapacity to work; that such incapacity was total and permanent, and not temporary; that there was not an employee of appellee's class who had worked substantially the whole of the year preceding November 26, 1939, or in a neighboring place, in an employment similar to that which appellee was performing during that period for C. W. Sternberg, and that in fairness and justice to both parties $30 per week was appellee's weekly wage; that disease or infection disconnected with the injury of November 26, 1939, was not the sole cause of such incapacity, and that neither arthritis, independent of his injury, low blood pressure, or gonorrhea occurring subsequent to November 26, 1939, or prostate trouble occurring before November 26, 1939, were the sole proximate causes thereof. The jury found that the pipe line work which plaintiff was performing on November 26, 1939, was a work of necessity.

Based upon the answers to said special issues, judgment was rendered in favor of appellee and against appellant for 400 weeks' compensation at $18 per week.

It is undisputed that appellee was injured on November 26, 1939, by being struck on the back by a piece of iron pipe while unloading a truck; that, at the time he was injured, he was employed by C. W. Sternberg, who carried compensation insurance with appellant. It is conceded that November 26, 1939, fell on Sunday.

Under appellant's first three propositions, it is contended that appellee's contract of employment with C. W. Sternberg involved services to be rendered on Sunday in violation of Articles 283 and 284 of the Penal Code of the State of Texas, which forbids labor on Sunday except in cases of necessity, and that therefore the relation of employer and employee did not exist between the parties and that there was no liability on the part of the insurer under the Compensation Act. This contention must be overruled.

While our courts have uniformly held that an agreement to perform certain labor on Sunday is illegal and cannot be maintained, it is the settled rule that if a party can show a complete cause of action without being obliged to prove his own illegal act, although such illegal act may incidentally appear and may be important as explanatory of other facts in the case, he may recover.

In the case of Texas Employers' Insurance Ass'n v. Peppers, 133 S.W.2d, 165, 169, this court, in passing on the precise question here presented, under a state of facts similar in all material respects to those in the instant case, Justice Cody, speaking for the court, says: "* * * violation of the law against working on Sunday could in no event release the insurer from his duty to compensate the insured for injuries received in the course of his employment on Sunday, unless the insurer could show that such injury was the direct result of violating the statute. * * * It was never intended or contemplated that the statute should deprive a man of the right to recover damages for injuries received while working on Sunday, unless they were caused as the direct result of violating the statute."

By the terms of said Article 284 of the Penal Code, works of necessity and other specified classes of employment are expressly excepted from the terms of said Article 283 of the Penal Code, prohibiting working on Sunday.

Further, it has been uniformly held by our courts that the burden of proof is upon the party alleging the illegality of a contract of this class, to prove that the contract requires an injured party to work on Sunday, and, the presumption being that the conduct of the parties to the contract is lawful, the burden of proof is also upon the party alleging such illegality, to negative the exception provided in said Article 284 that the work in which the injured party was engaged at the time of his injury was a work of necessity. Texas Employers' Ins. Ass'n v. Peppers, Tex.Civ. App., 133 S.W.2d, 165; Texas Employers' Ins. Ass'n v. Henson, Tex.Civ.App., 31 S.W.2d 669; Federal Underwriters Exchange v. Coker, Tex.Civ.App., 116 S.W.2d 922.

In the instant case there was not only no evidence of an agreement requiring appellee to work on Sunday, and no evidence that the fact that appellee was injured on Sunday, was in any way responsible for said injury, but there was no evidence that the work in which appellee was engaged at the time of his injury was not a work of necessity. No issue was requested by appellant or submitted by the court as to whether said contract required appellee to work on Sunday, and the jury found in answer to special issue No. 21, "that the pipe line work which plaintiff was performing on November 26, 1939, was a work of necessity."

Appellant assigns error in the refusal of the trial court to require appellee to submit to a physical examination by a physician of its choice, and in overruling its objection to the arguments of counsel for appellee in which appellant is alleged to have been criticised for producing only two medical witnesses as to appellee's physical condition at the time of the trial, in view of the fact that a...

To continue reading

Request your trial
8 cases
  • Greenhow v. Whitehead's, Inc., 7317
    • United States
    • Idaho Supreme Court
    • December 30, 1946
    ... ... Chattanooga Iron Works, ... supra; United Employers Casualty Co. v. Curry, ... Tex.Civ.App. 1941, 152 S.W.2d 862; ... ...
  • Federal Underwriters Exchange v. Craighead
    • United States
    • Texas Court of Appeals
    • January 29, 1943
    ...refused; Lloyds Casualty Co. of New York v. Grilliett, Tex.Civ.App., 64 S.W.2d 1005, writ of error refused; United Employers Casualty Co. v. Curry, Tex. Civ.App., 152 S.W.2d 862; Federal Underwriters Exchange v. Bickham, Tex.Civ. App., 136 S.W.2d 880, affirmed by Supreme Court in 138 Tex. 1......
  • Wallace v. Hartford Acc. & Indem. Co.
    • United States
    • Texas Supreme Court
    • January 25, 1950
    ...within the discretion of the trial court. Texas Employers' Ins. Ass'n v. Arnold, Tex.Civ.App., 105 S.W.2d 686; United Employers Casualty Co. v. Curry, Tex.Civ.App., 152 S.W.2d 862; Associated Employers Lloyds v. Tullos, Tex.Civ.App., 197 S.W.2d 210, writ refused, n. r. It is clear that ther......
  • Austin Road Co. v. Ferris
    • United States
    • Texas Court of Appeals
    • February 23, 1973
    ...therein cited); General Ins. Corp. v. Handy, 267 S.W.2d 622 (San Antonio, Tex.Civ.App., 1954, ref., n.r.e.); and United Employers Casualty Co. v. Curry, 152 S.W.2d 862 (Galveston, Tex.Civ.App., 1941, no writ General Insurance Corporation v. Handy, supra, was a workmen's compensation case in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT