299 S.W. 286 | Tex. App. | 1927
The facts are without dispute. Jack Kelly, deceased, was the stepson of Mrs. W. T. Kelly. He was 28 years old, unmarried, and was killed on March 30, 1926, while engaged in the work which he was required to perform as an employee of the Peer Oil Corporation, near Liberty, Tex., by being caught under and crushed by a falling derrick which was blown down by a severe windstorm. The Peer Oil Corporation was a subscriber under the Workmen's Compensation Act, carrying its policy of insurance with appellant. The father and mother of Jack Kelly both died years before his death, but he left surviving him three brothers, two married sisters, and one unmarried sister, and two half-brothers and one half-sister, the half-brothers and half-sister being the children of Mrs. Kelly. The Industrial Accident Board awarded Mrs. Kelly, the stepmother, the entire compensation to which the legal beneficiaries of Jack Kelly, deceased, were entitled.
In answer, by way of cross-action, to appellant's suit to set aside the award, Mrs. Kelly alleged that she was the stepmother of deceased; that deceased's father and mother were dead; that he left no dependent brother or sister; and that, therefore, she was the sole beneficiary entitled to compensation. In the trial, it was shown that deceased left a sister, Miss Fannie Kelly, 20 years of age, that was dependent upon him, and a half-sister, Mary Belle Kelly, 15 years of age, and two half-brothers, Artie Lee, 13 years old, and Mike Kelly, 11 years old, that were dependent upon him for support.
Only two special issues were submitted to the jury, in answer to which they found that deceased at the time of his death, was engaged in the performance of duties that subjected him to greater hazard from the act of God, which caused his injury and death, than was the general public, and that it would be a manifest hardship and injustice to deny Mrs. Kelly the payment of a lump sum in settlement of the compensation to which she was entitled. On the findings of the jury, the court found that appellee Mrs. Kelly was entitled to recover of appellant the sum of $3,128.32, for which judgment was rendered in her favor, less the sum of $469.24, which the court fixed and allowed as attorney's fees. The said sum of $3,128.32 is one-half of the total compensation to which the legal beneficiaries of Jack Kelly, deceased, were entitled under the law.
By its first proposition, appellant contends that:
"A stepmother is not entitled to recover compensation under the Employers' Liability Act of the state of Texas for the death of a *288 stepson, when said stepson was not a member of her household, and she was not dependent upon him for support, and said stepson left surviving him minor brothers and sisters alleged to have been dependent upon him for support."
This proposition is overruled. The original Compensation Act named no particular persons as beneficiaries, the statute simply providing:
"That the compensation provided for shall be distributed according to the law providing for the distribution of other property of deceased." Article 5246kk, Vernon's Sayles' Civil Statutes 1914.
This law was amended by the Act of March 28, 1917, wherein it was provided that the compensation payable under the law — "shall be for the sole and exclusive benefit of * * * the wife * * * and the minor children, without regard to the question of dependency, dependent parents and dependent grandparents and dependent stepmothers and dependent children or dependent brothers and sisters of the deceased employé." Article 5246 — 15, Vernon's Complete Texas Statutes 1920.
The law so remained until it was amended again in 1923, and by this amendment, which is still the law, it was provided that the compensation payable under this act shall be for the sole and exclusive benefit of the surviving wife — "and * * the minor children, parents and stepmother, without regard to the question of dependency, dependent grandparents, dependent children and dependent brothers and sisters of the deceased employé." Section 8a, art.
It is seen that under the Act of 1917, which was the act that first named the stepmother as a beneficiary, it was necessary to show that the stepmother was dependent upon the stepchild for support in order to entitle her to any compensation. By the express terms of the present law (section 8a, art.
Appellant's second proposition asserts that a stepmother is not entitled to recover compensation in a lump sum for the death of a stepson, when said stepson had not been a member of her household for over 5 years prior to his death, and she was not dependent upon him for support.
This contention cannot be sustained. The law does not require that a stepchild must be a member of the stepmother's household, nor does it require that the stepmother be dependent upon the stepchild before she can be a beneficiary and receive compensation. Her right to a lump sum settlement is the same as any other beneficiary, and is controlled by the same facts and circumstances authorizing such settlement. The two facts offered by appellant as necessary for sustaining its proposition are wholly apart from the question. The question as to whether the compensation to which appellees were entitled should be paid in a lump sum was one of fact raised by the pleadings and the evidence, and the special issue submitting that issue to the jury was answered favorably to appellees. We think the evidence is sufficient to support the verdict, and the assignment is overruled.
Appellant's third proposition is:
"The beneficiaries of deceased employee are not entitled to recover compensation under the Employers' Liability Act of the state of Texas, when the undisputed evidence shows that the injuries received resulting in death, due to an act of God, and at the time said injuries were received, said employee was not engaged in the performance of duties that subjected him to a greater hazard from an act of God than ordinarily applied to the public generally."
If, as asserted by appellant, the undisputed evidence showed that deceased was injured and killed by an act of God, and deceased at the time was not engaged in the performance of duties which subjected him to a greater hazard from the act of God than ordinarily applied to the public generally, then the *289
proposition should be sustained. Undoubtedly, the windstorm that caused the death of deceased was an act of God, but the evidence, we think, without dispute, shows that deceased was at the time of his death engaged in the discharge of duties in the course of his employment that subjected him to a greater hazard than ordinarily applied to the general public. This is a companion case to Security Casualty Co. v. Brown,
Appellant does not challenge the amount of the judgment, nor the correctness of the calculations by which it was determined. The assignments urged present questions of law and fact, all of which have been determined against appellant. Hence the judgment should be affirmed, and it is so ordered.
Affirmed.