Texas Employers' Ins. Ass'n v. Wolfe

47 S.W.2d 386

• Court: Court of Appeals of Texas
• Decided: January 30, 1932
• Docket: No. 11120
• Status: Published

Opinions

VAUGHAN, J.

Appellee Wolfe instituted this suit in a district court of Dallas county to set aside an award of the Industrial Accident .Board of Texas, made and entered August 5, 1930, allowing said appellee compensation for 100 weeks at the rate of $20 per week on account of certain injuries alleged to have been sustained by him as an employee of the Dallas Transfer & Terminal Warehouse • Company (to be hereinafter referred to as warehouse company), and while in the course of said employment on April 14, 1930, and to recover judgment for total and permanent disability in a lump sum against appellant as the insurer of said appellee against accidental injuries resulting in total and permanent disability, etc., to the employees of the warehouse- company. Appellant answered with general demurrer and general denial.

Upon the jury’s answers to the special issues submitted, the trial court, on July 2, 1931, rendered judgment in favor of appellee and against appellant for the sum of $6,804.-09 in a lump sum with 6 per cent, interest thereon from date of judgment, and of said sum awarded to the appellees John White and H. J. Yarborough, the attorneys representing appellee Wolfe, the sum of $2,268.03, against said appellee and appellant; and further, the award, final ruling, and decision of the Industrial Accident Board of Texas rendered herein August 5, 1930, was in all things vacated and set aside! From the answers made by the jury to the special issues submitted by the trial court, the following material facts were found to have been established by the evidence, viz.: That appellee Wolfe sustained personal injuries on April 14,1930; was an employee of the Warehouse company; that while in the course of his said employment he sustained total incapacity on said date; ■ that said incapacity naturally resulted from the injuries so sustained by him; that said total incapacity will be permanent; that the payment of compensation to said appellee by appellant in weekly installments will result in a manifest hardship and injustice to appellee; that appellant, Industrial Accident Board, and the warehouse company, each received notice of the injuries sustained by appellee, on April 14, 1930, within 30 days after said date; that appellee made claim for compensation upon ■the appellant for his injuries within six months after April 14, 1930, and that within said period -of time he filed claim for compensation for his injuries with the Industrial Accident Board; that appellee worked in the employment in which he was engaged at the time of his injuries in question for substantially the whole of the year immediately preceding April 14, 1930; that the average daily wage or salary earned by appellee per day during the days when so employed covering the year immediately preceding April 14, 1930, was $10; that the average daily wage or salary which an employee -of the same class as appellee, working substantially the whole of the year, immediately preceding April 14, 1930, in the same or similar employment to that of appellee, in the same or in a neighboring place to that in which ap-pellee was working when he sustained the injuries in question, earned in such employment during the days when so employed $10 per day; that said warehouse company, or its foreman, H. A. McCain, had control of appellee so as to be able to direct all of the details of the carrying out of the work that appellee was doing at the time of his injuries. Said findings of fact being amply supported by the evidence are adopted as part of our findings of material facts.

In view of the fact that appellant, in its brief, only questions the sufficiency of the evidence to sustain the judgment in two material respects, viz.: (a) That the evidence considered as a whole did not establish that appellee Wolfe was, at the time he sustained his injuries, an employee of the warehouse company, but, to the contrary, established that at said time he was an employee of the Hosier Safe Company and not appellant’s subscriber; and (b) that all of the evidence established that appellee was doing the work, not of an iron worker, at the time he sustained the injuries in question, but of an employee engaged in the moving or transfer business — we are only called upon to review the statement of facts in these respects.

We have carefully examined the testimony of the witnesses bearing upon the above contentions and find the following facts to have been established without conflict, viz.: (a) That said warehouse company had a contract to move the vault door and lining to be used in constructing said vault, not only to the sidewalk in front of the First National Bank Building, but into the basement of said building, and in position, including placing said door before tlie opening of the vault to be there properly swung by the employees of the Mosler Safe Company; that appellee was a structural iron worker at the time of his injury and had been for about ten years prior thereto engaged in that work; that he had been employed by, and was an employee of, said warehouse company at the time his injury was received, and was working under one P. J. Kain, foreman, employed by said ■warehouse company to superintend the moving of said lining and door from the sidewalk to its proper position, and he was compensated therefor by said warehouse company; that said warehouse company paid appellee Wolfe for his work that he had performed for it before and was performing for it at the time he was injured; that appellee Wolfe took orders from said Kain, as foreman; (b) that said warehouse company employed structural iron workers to move the lining and door to be used in constructing said vault from the sidewalk to the basement of said bank building, and to place same in position, which included the vault door which appellee AVolfe was assisting to move into • position before the vault opening; that the technical work of erecting said vault was being done by Mos-ler Safe Company, and the warehouse company was engaged in transporting and moving the vault door and lining to the opening of the vault where the door was to be hung by said safe company; that the regular employees of said warehouse company moved the lining and vault door onto the sidewalk in front of the bank building; that said material was then taken charge of by Union iron workers, employed by said warehouse company for that purpose; that they had lowered said lining and door into'the base* ment and were to move same to proper position in front of the vault opening; that at the time of appellee’s injury, the vault door was about one and one-half lengths from said opening and being moved toward it; that structural iron workers received a wage of $1.25 pier hour working eight hours per day and 5½ days per week'; that appellee received, for the services rendered by him under his employment by said warehouse company, the same compensation and worked under the same terms as if he had been doing the technical work required to construct said vault.

The above facts, we think, completely refute appellant’s contentions (a) and (b); therefore its proposition Nos. 1 to 9, inclusive, upon which said contentions are based, are 'Overruled.

It is true that appellee Wolfe was not engaged to do, or was doing when injured, what is termed technical structural iron work, in that he was not employed to assemble in proper position and permanently fasten the component parts of the material that would complete the contract for the construction of said vault. However, appellee’s work was so germane to and correlated with such technical work as to come within the realm of service usually performed by a structural iron worker. Therefore, it cannot be said that appellee was employed to perform, and was performing at the time he sustained his injuries, work so disassociated from the ordinary duties of a structural iron worker, performing the services necessary to construct said vault, that same was not to be classified as structural iron work.

Appellant, by its tenth, eleventh, a nd twelfth propositions, respectively, contends that the trial'court erred in holding that the jury’s affirmative answers to each of the following special issues was not against the great weight of the evidence so much so as to permit same to stand, would. result in manifest hardship and injustice, viz.:

“No. 2. Do you find and believe from a preponderance of the evidence that the plaintiff, G. W. Wolfe, was an employee of the Dallas Transfer & Terminal Warehouse Company at the time he sustained the personal injuries, if any, on* April 14, 1930? Answer: ‘Yes.’

“No. 2a. Do you find and believe from a preponderance of the evidence that plaintiff, G. W. Wolfe, sustained the personal injuries complained of, if any, on April 14,1930, while in the course of his employment with the Dallas Transfer & Terminal Warehouse Company? Answer: ‘Yes.’”

“No. 20. Do you find and believe from a preponderance of the evidence that the Dallas Transfer & Terminal Warehouse Company, or its foreman, H. A. McCain, had control over G. W. AVolfe, so as to be able to direct all the details of the carrying out of the work the said G. W. Wolfe was doing at the time.of his injury, if any? Answer: ‘Yes.’ ”

We think said answers were made under and in conformity with the greater weight of the evidence as, in our judgment was demonstrated from a careful survey and just appraisal of the probative effect of all the evidence introduced bearing upon said issues, as reflected by the material facts found by this court to have been established thereby.

Appellant, by its propositions Nos. 13 to 17, inclusive, challenges the sufficiency of special issues Nos. 2, 2a, 5, and 20, because the court refused to give in connection with each one of said issues the following charges requested by appellant, viz.: “The burden of proof is upon the plaintiff, G. W. Wolfe, to establish the affirmative of special issue No. - by a preponderance of the evidence and if he has failed to so prove such issue, you will answer the same with ‘No,’ ” same having been properly requested, the special charge so requested as to each one of said issues containing in the blank space the number of the issue in reference to which said special charge was requested. Each of said issues contains the following instruction as to the burden of proof: “Do you find and believe from a preponderance of the evidence that,” followed by the issues to be considered, and answered, no other charge on the burden of the proof was given by the court other than the following contained in the general charge, viz.: “This case is submitted to you upon the following special issues which you will answer from a preponderance of the evidence; that is, the greater weight and degree of credible testimony before you without regard to the effect your answers may have upon the judgment in this case.”

Under the holding of this court in the case of Texas Employers’ Insurance Association v. Adcock, 27 S.W.(2d) 363, the court properly refused to give said special charges. Appellant relies upon the admonition contained in the ease of Houston & T. C. Ry. Co. v. Stevenson, 29 S.W.(2d) 995, 999, by the Commission of Appeals (which was not approved by the Supreme Court), in reference to instructing a jury upon the burden of proof, viz.: “Since this case will be reversed and remanded, we think it proper to state that, when plaintiff pleads and relies for recovery upon specific acts of negligence on the part of the defendant, and the ease is submitted to the jury upon special issues, it is proper to instruct the jury as to those acts of negligence so charged and relied upon that the burden is upon the plaintiff to establish them by a preponderance of the evidence.”

Appellant also cites as authority the ease of Commercial Standard Insurance Co. v. McGee (Tex. Civ. App.) 40 S.W.(2d) 1105, in which the above holding in Railway Co. v. Stevenson, supra, together with other deci-’ sions, holding pro and con, therein cited were discussed, with 'the result that this court, in view of said direction contained in said Stevenson Case, made the following observation: “Therefore, we think it well that trial courts observe the rule as stated in the Stevenson case.” In the case of Federal Surety Company v. Smith, 41 S.W. (2d) 210, 214, opinion by the Commission of Appeals, the following observation was made upon the matter under discussion,, viz.: “In view of the frequency with which we are called upon to determine the correctness of the form of special issues, we desire to suggest that the least objectionable method of procedure is for the trial court to propound the question to be submitted in the form, ‘Do you find from a preponderance of the evidence that’ (following with the question to be determined), so framing the question, upon each issue, as to place the burden of proof where it properly belongs.”

The holdings in this opinion, on the questions discussed, were approved by the Supreme Court. The closing paragraph of the above quotation still leaves the question raised by appellant’s propositions in a state of uncertainty and doubt, unless-the language “as to place the burden of proof where it properly belongs,” as applied to this case, has reference to, and only means, that in so far as appellee Wolfe, as plaintiff, pleaded and relied upon for recovery specific acts of negligence on the part of the warehouse company, or appellant, the trial court should have instructed the jury as to such acts of negligence that the burden of proof was upon appellee to establish'them by a preponderance of the evidence; accepting this as being the proper interpretation and application of the suggestion in Surety Co. v. Smith, supra, we overrule appellant’s propositions under discussion, on the ground that neither of said requested charges was in reference to any specific act of negligence on the part of. said warehouse company, or appellant, pleaded and relied upon by appellee for recovery.

We have carefully considered all of the propositions not specially discussed, and finding no reversible error presented by any one of said propositions, same are overruled; it is therefore ordered that the judgment of the trial court be, and the same is hereby, in all things affirmed. ¡

Affirmed.