Opinion
No. 3542.
April 29, 1937. Rehearing Denied May 20, 1937.
Appeal from District Court, Upton County; Jos. G. Montague, Judge.
Suits under the Workmen's Compensation Act by A. A. Chancellor and by the Traders General Insurance Company to set aside an award of the Industrial Accident Board granting A. A. Chancellor compensation, discharging the Maryland Casualty Company from liability and ordering A. A. Chancellor to submit himself to a surgical operation, which were consolidated. From the judgment, the Traders General Insurance Company appeals.
Reversed and remanded.
This is a workmen's compensation case involving the workman A. A. Chancellor, appellee here, and the alleged insurance carriers, Traders General Insurance Company and the Maryland Casualty Company.
The Industrial Accident Board entered its order as follows:
"On this 14th day of January, 1936, after due notice to all parties, came on to be considered by Industrial Accident Board claim for compensation by A. A. Chancellor against the Maryland Casualty Company and Traders and General Insurance Company, and Board finds and orders:
"That said A. A. Chancellor has filed to sustain burden imposed upon him by law to establish by proof that Maryland Casualty Company carried compensation insurance on the operations of F. C. Ingham. Therefore, said claim is denied and the Maryland Casualty Company is finally discharged from all liability by reason of his said claim for compensation against it.
"On October 9th, 1935, Westerly Supply Company, a subscriber to Employers' Liability Law with Insurance carried by the Traders and General Insurance Company, had in its employ A. A. Chancellor whose average weekly wage was $20.19, and compensation rate $12.12 per week under the Act. On said date A. A. Chancellor suffered injuries in course of employment resulting in his total incapacity for performance of labor for an indefinite period in the future not exceeding 401 weeks.
"Traders and General Insurance Company is ordered to pay A. A. Chancellor $12.12 per week for an indefinite period in the future not exceeding 401 consecutive weeks from October 9, 1935, unless changed by subsequent award of the Board. Previous payments of compensation, if any, shall be deducted from this award.
"That said A. A. Chancellor is ordered to submit himself to surgical operation at the hands of a doctor to be agreed upon by and between he and the Traders and General Insurance Company on a date not earlier than February 16, 1936, and not later than March 16th, 1936, unless operation is performed on an earlier date by agreement. Such operation shall be performed at a hospital to be designated by operating surgeon and the reasonable expense incident thereto shall be paid by said Traders and General Insurance Company."
From this order Chancellor and the Travelers General Insurance Company appealed to the district court of Upton county, where the cases were consolidated.
Chancellor alleged that on or about the 4th day of October, 1935, he was an employee of the Westerly Supply Company, which was the trade-name of one Sam Weiner. That the appellant, Traders General Insurance Company, had, prior to the 4th day of October, 1935, issued its policy of workmen's compensation insurance to cover the employees of Sam Weiner, doing business as Westerly Supply Company, and that the said policy of compensation insurance was in full force and effect on October 4, 1935, the date of the alleged injuries to appellee. Appellee alleged further that the Shell Petroleum Company or the Shell Pipe Line Company owned a large oil tank or reservoir near the town of McCamey, in Upton county, Tex.; that the said Shell Petroleum Company or the Shell Pipe Line Company, desired to dismantle or tear down the said oil reservoir or tank, and entered into a contract with the said Westerly Supply Company to tear down and dismantle the said reservoir; that the said Westerly Supply Company employed F. C. Ingham to do the work of tearing down and dismantling such reservoir under the direction of and on account of and for the Westerly Supply Company; that in pursuance with said agreement between the Westerly Supply Company and the Shell Petroleum Company and/or Shell Pipe Line Company and F. C. Ingham, the work of dismantling the oil reservoir in Upton county, Tex., was begun; and that while engaged with other workmen in tearing down said reservoir located at McCamey, Tex., on or about the 4th day of October, 1935, the appellee, Chancellor, was injured. He alleged that at the time of his injury he was engaged in the ordinary duties of his employment for the Westerly Supply Company and/or Sam Weiner.
The appellee alleged that the policy of insurance written by the Traders General Insurance Company was written in the name of Westerly Supply Company, which was the trade-name of an individual, Sam Weiner; that nevertheless, the insurance policy was written specifically for the work to be done, and which was being done by the appellee at the time of his injuries; and that said policy was for the benefit of the employees, whether such employees were employees of Westerly Supply Company, Sam Weiner, F. C. Ingham, J. W. Brown, or any other person, firm, or corporation doing the work. That if the employer was incorrectly named in the policy of insurance issued by the Traders General Insurance Company, then such employer was misnamed by mutual mistake, and that it was the intention of the parties, including the Traders General Insurance Company, that such policy issued by the Traders General Insurance Company cover, and it did cover, the employees engaged in the work of dismantling the tank at the time and place appellee was injured.
Pleading further, appellee alleged that if he was mistaken in his allegations that he was an employee of Westerly Supply Company (Sam Weiner), and if it be found that he was working for F. C. Ingham, then he alleges that F. C. Ingham was carrying a policy of compensation insurance with the defendant, Maryland Casualty Company, by the terms of which all of the employees of F. C. Ingham were protected, and thereby sought to recover from the defendant, Maryland Casualty Company.
Appellee then alleged that he had not worked in the employment in which he was working at the time he received the injuries for substantially the whole of the year immediately preceding his injuries, but had worked only for about 3 weeks or some 21 days. He further alleged that it was impracticable to compute his wages under the terms and provisions of the 1st subdivision of section 1, article 8309, but that his wages should be computed by the court in accordance with subdivision 2, section 1, article 8309, and alleged that there were other employees of the same class as that of the appellee working substantially the whole of such immediately preceding year in the same or similar employment, who earned in such employment an average daily wage of $3.50, and whose average weekly wage was $20.19. Appellee alleged in the alternative that in the event there were no other employees of the same class as the appellee, then he should have his wage rate computed under the terms and provisions of subdivision 3, section 1, article 8309; that is, any method that is deemed fair and just to both parties, and alleged that his wage rate in this connection should be $12.12, per week.
An instructed verdict was returned in favor of the Maryland Casualty Company.
The jury found: (1) That the appellee, Chancellor, while working on the dismantling of a tank owned by the Shell Petroleum Corporation in Upton county, Tex., on or about the 4th day of October, 1935, did sustain personal injuries; (2) that the appellee, Chancellor, sustained loss of capacity to work as a result of such injuries; (3) that such loss of capacity to work began October 4, 1935; (4) that the appellee, Chancellor, sustained total loss of capacity to work as a result of his injuries; (5) that such total loss of capacity to work was not permanent; (6) that the total loss of capacity to work sustained by the appellee, Chancellor, would last 200 weeks; (7) that the appellee, Chancellor, also sustained partial loss of capacity to labor as a result of his injuries; (8) that such partial loss of capacity to labor was not permanent; (9) that such partial incapacity sustained by the appellee, Chancellor, as a result of his injuries was 100 per cent.; (10) that the duration of the partial incapacity of the appellee, Chancellor, would be 200 weeks; (11) that the loss of capacity to work was not the result of causes other than injuries sustained by the appellee, Chancellor, on or about October 4, 1935; (12) that the loss of capacity to work sustained by the appellee, Chancellor, did not partially result from a cause or causes other than the injuries sustained by him on or about October 4, 1935; (13) that the appellee, Chancellor, has not recovered from the injuries sustained by him on October 4, 1935; (14) that this was a case in which manifest hardship and injustice would result unless the appellee, Chancellor, was paid a lump sum.
The court in its judgment made a finding that Chancellor was entitled to compensation at the rate of $12.12 per week, that being the amount computed by the court and established by the evidence to be due and payable under the provisions of said law, for a period of 200 weeks commencing October 12, 1935.
Judgment was rendered in favor of the Maryland Casualty Company, and from that portion of the judgment no appeal was taken.
Judgment was also rendered in Chancellor's favor against the Traders General Insurance Company for accrued compensation for 37 weeks, amounting to $448.44, and for $12.12 per week for 163 weeks from date of judgment, payable weekly.
Claude Williams and Lightfoot, Robertson, Saunders Gano, all of Fort Worth, and Hudson Hudson, of Pecos, for appellant.
J. W. Chancellor and Donald Donald, all of Bowie, for appellee.
1. Appellant's first assignment complains of the overruling of its plea in abatement. This plea challenged the jurisdiction of the court upon the ground that the order of the Industrial Accident Board was not a final order from which an appeal would lie, because of that portion of the board's order directing an operation.
This is not a hernia case. If such were its nature, it would seem the plea would be well taken under the rulings in Tally v. Texas E. I. Ass'n (Tex.Com.App.) 48 S.W.2d 988, Petroleum Cas. Co. v. Webb (Tex.Com.App.) 92 S.W.2d 236, and Texas E. I. Ass'n v. Marsden (Tex.Com.App.) 92 S.W.2d 237. The cases cited were hernia cases, and in such cases the law imposes upon the compensation carrier the duty to provide surgical treatment by radical operation under certain conditions. Article 8306, subdivision 4 of section 12b. In all hernia cases, the Industrial Accident Board has jurisdiction to order an operation, if the employee will not voluntarily submit thereto.
In cases of general injuries, the board may order an operation under certain conditions when either the injured employee or the insurance carrier may in writing demand such operation. Article 8306, § 12e.
The Industrial Accident Board is not a court, but an administrative body created by statute and possessing those powers only conferred upon it by statute. Commercial C. I. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081, 89 S.W.2d 1116.
It follows that the board, in general injury cases, has no authority to order an operation upon an injured employee, unless demand therefor in writing has been first made by the employee or the insurance carrier, or both. In the absence of such demand, the board has no jurisdiction to order an operation.
The plea in abatement does not allege, nor was any evidence offered, that such demand was made in this case. The order of an operation was beyond the jurisdiction of the board. It was void. Heard v. Texas C. I. Co. (C.C.A.) 87 F.2d 30.
Disregarding this void feature of the board's order, such order denies the claim against the Maryland Casualty Company, and allows the claim against appellant, and orders compensation at the rate of $12.12 per week for an indefinite period, not to exceed 401 weeks. These features of the order render same a final order in the appealable sense. Southern S. Co. v. Hendley (Tex. Civ. App.) 226 S.W. 454; Lumbermen's R. Ass'n v. Warren (Tex. Civ. App.) 272 S.W. 826; Texas E. I. Ass'n v. Vestal (Tex. Civ. App.) 271 S.W. 225; Vestal v. Texas Employers' Ins. Ass'n (Tex.Com.App.) 285 S.W. 1041.
2. The next group of propositions assert there is no evidence to show the proper wage rate upon which appellee is entitled to compensation, and if there be such evidence, nevertheless, the court was not authorized to make the finding, but it was an issue for the determination of the jury, which issue was waived by appellant's failure to request the submission of the same.
The appellee pleaded and proved it was impracticable to compute his wages under the first subdivision of section 1, Rev.St. 1925, art. 8309, § 1, subsec. 1, article 8309, R.S. He offered no evidence to support his alternative allegation as to the average daily wage of employees of the same class working substantially the whole of the preceding year in the same or similar employment in the same or neighboring places. In the absence of such evidence, appellee's wages could not be computed under the second subsection. American E. Ins. Co. v. Singleton (Tex.Com.App.) 24 S.W.2d 26.
Nor did appellee offer any evidence that there were no such employees, and therefore there was no evidence to authorize the computation of his wages under the third subsection. American E. Ins. Co. v. Singleton, supra.
On the other hand, if there was evidence sufficient upon which to base the computation under the second or third subsection, then the issue as to the average weekly wage was an independent one required to be submitted to the jury. Norwich U. I. Co. v. Chancellor (Tex.Com.App.) 5 S.W.2d 494.
By failing to request the submission of such issue, appellant waived the same, and the finding thereon by the court was unauthorized. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084.
It cannot be determined whether the court computed the wage rate under the second or third subsection, but in either event the evidence as to the proper wage rate is not undisputed, for which reason the court was not authorized to withdraw the issue from the jury.
3. The evidence shows the Westerly Supply Company (Weiner), by written contract, sublet to F. C. Ingham the wrecking and dismantling of the reservoirs. The contract did not reserve to said company any right to control the details of the work. As to that, the contract is silent. The evidence shows J. W. Brown was an employee of Ingham in charge of the work as Ingham's superintendent or foreman. Brown, acting for Ingham, employed and paid Chancellor his wages. Under the evidence in this case, it cannot be said as a matter of law that Ingham was not an independent contractor. If Ingham was an independent contractor, then Chancellor was not an employee of the supply company, and not covered by the policy issued by appellant which, as written, protected only employees of the supply company. Whether Chancellor was an employee of the supply company was a vital issue depending upon the status of Ingham as an independent contractor. In the state of the evidence, the failure of the appellee to request the submission of the issue operated to waive the same. It cannot be presumed, in support of the judgment, that the trial court found the issue in such way as to support the judgment. Norwich U. I. Co. v. Chancellor (Tex.Com.App.) 5 S.W.2d 494.
The evidence very clearly shows that in procuring the policy written by appellant, Weiner intended to procure a policy protecting the employees engaged in wrecking the reservoirs. If Ingham was an independent contractor, then the evidence is sufficient to raise the issue of mutual mistake of the parties in naming the supply company instead of Ingham as the employer. This phase of the case is presented by the evidence and the pleadings of appellee.
Upon retrial it should, upon proper request, be submitted to the jury.
4. The assignment is also sustained which complains of the admission of the testimony of appellee's medical expert, Dr. Kiel, who testified concerning appellee's disability. Dr. Kiel testified he examined Chancellor for diagnosis and treatment, but had not treated him. His testimony also shows his testimony as to appellee's condition was based in part upon objective symptoms which he found, and in part upon the history of the case and subjective symptoms as related to him by appellee. Since the evidence shows Dr. Kiel based his opinion as to appellee's condition in part upon subjective symptoms and the history of the case as related to him by appellee, his said opinion was inadmissible. Texas Employers' Insurance Association v. Wallace (Tex. Civ. App.) 70 S.W.2d 832; Gaines v. Stewart (Tex. Civ. App.) 57 S.W.2d 207; Traders General Insurance Company v. Rhodabarger (Tex. Civ. App.) 93 S.W.2d 1180; Texas N. O. Ry. Co. v. Stephens (Tex. Civ. App.) 198 S.W. 396; Wheeler v. Tyler S.E. Ry. Co., 91 Tex. 356, 43 S.W. 876; 65 A.L.R. 1218-1223, and cases cited therein.
5. For the errors pointed out, the judgment must be reversed. It therefore becomes unnecessary to consider the assignments relating to alleged conflicts in the findings of the jury.
The judgment in favor of the Maryland Casualty Company is not disturbed.
Reversed and remanded.