Williams v. Lumbermen's Reciprocal Ass'n

• Decision Date: 23 May 1929
• Docket Number: (No. 9279.)
• Citation: 18 S.W.2d 1093
• Parties: WILLIAMS et al. v. LUMBERMEN'S RECIPROCAL ASS'N.
• Court: Texas Court of Appeals

18 S.W.2d 1093

WILLIAMS et al. v. LUMBERMEN'S RECIPROCAL ASS'N.

(No. 9279.)

Court of Civil Appeals of Texas. Galveston.

May 23, 1929.

Rehearing Denied June 20, 1929.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by Maggie Williams and another against the Lumbermen's Reciprocal Association, to set aside an award of the Industrial Accident Board and recover compensation under the Workmen's Compensation Law for the death of Will Williams. From an adverse judgment, plaintiffs appeal. Reversed, and remanded.

H. J. Nichols, W. J. Knight, and Morris, Sewell & Morris, all of Houston, for appellants.

Andrews, Streetman, Logue & Mobley, of Houston, for appellee.

GRAVES, J.

This concededly correct statement is taken from appellants' brief:

"The appellants, Maggie Williams and H. J. Nichols, filed this suit on March 19, 1928, in the district court of Harris county, Texas, for the Eleventh judicial district, to set aside an award of the Industrial Accident Board of the state of Texas, which had been rendered on a claim for compensation under the Workmen's Compensation Law, arising out of the death of Will Williams, husband of Maggie Williams.

"Appellants alleged that the deceased, Will Williams, had been in the employ of the Myers-Spalti Manufacturing Company at or near the city of Houston, Harris county, Texas, and that while he was engaged in the course of such employment, he fell or was knocked from a moving elevator, violently striking the floor, and thereby suffering injuries which caused his death.

"Appellants further alleged that at the time this injury occurred the Myers-Spalti Manufacturing Company was a subscriber under the Workmen's Compensation Law, and that the Lumbermen's Reciprocal Association, appellee herein, for a valuable consideration had issued to it a policy of workmen's compensation insurance, by reason of which the Workmen's Compensation Law of the state of Texas became operative and applied to the plaintiffs' claim for compensation for the death of Will Williams.

"Appellants further alleged that the plaintiff, Maggie Williams, had notified the deceased's employer and the Industrial Accident Board of the injury and death of Will Williams within 30 days, and had presented her claim for compensation to the Industrial Accident Board within 6 months; that thereafter the Industrial Accident Board made its final ruling and decision thereon, and within 20 days thereafter the plaintiffs, Maggie Williams, and H. J. Nichols, her attorney, notified said board that they would not abide by the award, but would file suit for a review of the same, and within 20 days after giving such notice filed this suit to set it aside.

"The plaintiff Maggie Williams pleaded facts showing the amount of compensation which she should recover, and prayed for judgment based on that amount.

"The plaintiff H. J. Nichols set forth facts showing that he had been employed by Maggie Williams as attorney to prosecute her claim, under which agreement he was to receive for his services the sums provided for under the Workmen's Compensation Law, which sums were specifically alleged, and prayed that he might be apportioned such sums out of any judgment awarded the plaintiff Maggie Williams.

"The defendant pleaded a general demurrer and general denial.

"The case went to trial, and the defendant, by written stipulation, which was offered in evidence, admitted to be true the material facts alleged by the plaintiffs with reference to the following matters:

"(a) That on or about December 15, 1927, Will Williams was an employee of the Myers-Spalti Manufacturing Company.

"(b) That the Myers-Spalti Manufacturing Company was a subscriber under the Workmen's Compensation Law, and was qualified to become such.

"(c) That at the time above mentioned the Myers-Spalti Manufacturing Company carried a valid and subsisting policy of insurance with the Lumbermen's Reciprocal Association, under which the Workmen's Compensation Law applied to the plaintiff's claim for compensation.

"(d) That proper notice of injury was given and claim for compensation filed with the Industrial Accident Board in proper time, and that thereafter, on the 8th day of March, 1928, the board made a final award on the claim, and that the plaintiffs within the time prescribed by law filed notice with the Industrial Accident Board that they would not abide by the award, and that they would file suit to set the same aside.

"Plaintiffs introduced evidence in support of their pleadings; at the close of the plaintiffs' evidence the defendant did not ask a directed verdict, but introduced much testimony on its own behalf, and at the close of all the evidence tendered to the court such a request.

"The court then, over the objection of plaintiffs, instructed the jury to render a verdict for the defendant, to which the plaintiffs excepted.

"The jury having rendered a verdict as directed, the court overruled the objection of plaintiffs, and entered judgment for the defendant in accordance therewith.

"Plaintiffs duly excepted to the entry of such judgment, and preserved all the above-described exceptions by bills of exceptions duly presented and allowed."

The facts showing jurisdiction in the trial court were admitted by the appellee, and the parties agree that the only question for determination on the appeal is: Did the evidence raise an issue as to whether or not the death of Will Williams was caused in a manner supported by the pleadings of the plaintiffs below, appellants here?

We think the issue was raised. In substance, the plaintiffs alleged that Will Williams fell or was knocked from a moving elevator, violently striking the floor upon his stomach, practically face downward, thereby either (1) rupturing his gall bladder to such an extent as to give rise to a purulent abscess, which caused his death; or (2) rupturing an abscess in his abdominal cavity, so as to cause his subsequent death; or (3) aggravating or lighting up a dormant condition of his gall bladder to such an extent as to thereafter cause his death.

If there was evidence of sufficient probative force to make a proper inquiry for the jury out of any one of these alternative averments, it shold have been submitted, since each, if found to have been proven, would have comprehended a compensable injury under the statute. From a careful examination of the statement of facts it seems to us plain that a question of fact was raised as to whether or not, while Williams was attempting to operate an elevator in his employer's warehouse, some part of it, in falling, struck him upon the head, knocking him through a two-foot aperture onto a floor ten feet below, resulting in such harm to the physical structure of his...