1 S.W.2d 434 | Tex. App. | 1927
This suit was brought by appellant, as plaintiff below, to set aside an award of the Industrial Accident Board in favor of appellees. Judgment was for appellees, from which the insurance company has appealed.
The policy in question was issued by appellant under the Workmen's Compensation Act (Rev.St. 1925, arts. 8306-8309) to Otho Eddleman, doing business as the "Auto Brokerage Company at San Angelo, Tex.," and covered such business under the following terms:
"Automobile dealers — with or without garage — all employees, including chauffeurs and their helpers, office employees and salesmen."
The operations named in the policy as covered thereby were as follows:
"(1) All industrial operations upon the premises. (2) All office forces. (3) All repairs or alterations to premises. (4) Specially rated operations on the premises. (5) Operations not on the premises."
G. D. Arnold, one of the garage mechanics employed by the Auto Brokerage Company, while "cranking" an aeroplane at Ozona, in Crockett county, and while repairing same as a mechanic, was struck in the head by a propeller and killed. The award was made to his wife and children and a portion set aside to his attorneys, as authorized by the Compensation Act.
Plaintiff sought to set aside said award on the grounds that the risk which occasioned Arnold's death was not covered by the policy: First, because he was not engaged in the course of his employment at that time, and, second, because he was not at the time of the injury the employee of the insured, but had been loaned by him to the "San Angelo Airways," a corporation which owned the aeroplane. It also impleaded Otho Eddleman, Arnold's employer, alleging that if it should be held liable to claimants for compensation, that it should have like judgment over against Eddleman for the reason that he had caused Arnold to assume risks not covered by nor contemplated in the policy. The trial court dismissed Eddleman from the suit on the grounds of misjoinder of parties and causes of action.
The questions here presented are: (1) The action of the trial court in dismissing the action against Eddleman; and (2) whether Arnold was injured in the course of his employment under the terms of the policy.
The trial court did not err in dismissing the suit of appellant against Eddleman. Though the suit was brought by appellant as plaintiff to set aside an award of the Industrial Accident Board, under the statute it then became a trial de novo on the question of claimants' rights to recover against the insurance company under said policy, in which the burden was upon them to establish this claim. Article 8307, § 5, R.S. 1925. The claimants, in effect, became plaintiffs and the insurance company a defendant.
It is the policy of the law to permit all controversies between the same parties growing out of the same transactions, or relating to the same subject, to be settled in one suit "where this can be done without undue prejudice to the rights of any of the parties." Blum Milling Co. v. Moore-Seaver Grain Co. (Tex.Com.App.)
(a) "Privity in transaction, or contract, as between the plaintiff and the defendants"; (b) "existence of a cause of action in favor of the plaintiff and against all of the defendants"; and (c) "the fact that, on the main aspects, the proof necessary to a recovery by the plaintiff also substantially determines the basic issues as between the codefendants."
The second element is wholly lacking in the instant case. If claimants are entitled to recover at all against the insurance company, they could recover nothing against Eddileman. And having shown that said policy was issued to Eddleman, that Arnold was in his employ when injured during the life of said policy, that he was injured in the course of his employment, and the amount of their compensation, the claimants are entitled to recover. But this same evidence would not sustain a recovery in favor of appellant against Eddleman.
There is no contention that said policy was void, obtained by fraud, or that its express provisions were violated. Appellant only insists, in this respect, that Eddleman caused Arnold in the course of his employment to perform more dangerous and hazardous work than was contemplated in the policy for a mechanic in a garage. Such an issue between the insurance company and Eddleman should not be allowed to prejudice or *436 delay the rights of the claimants to their compensation.
It may also be noted that, under the statute, the suit must be brought in the county (Crockett) where the injury occurred. See article 8307, § 5, R.S. 1925; Mingus v. Wadley,
It is immaterial that the injury occurred off the premises of the employer. The language of the policy itself covers such injuries, if in the course of employment, as does the language of the Compensation Act itself. In defining what constitutes injuries sustained in the course of employment, section 1, art. 8309, R.S. 1925, after setting forth certain injuries not included, provides:
" * * * But shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer's premises or elsewhere."
The evidence shows that at the time of his injury and death Arnold was employed by the Auto Brokerage Company as a mechanic in its garage; that he was a skilled mechanic in the repair of all kinds of gasoline engines, including aeroplane engines, being an aeroplane pilot of extensive experience himself; that in the operation of such garage, the repair of gasoline propelled motors, including automobiles, tractors, and aeroplanes, was usual and customary, said garage having habitually kept in repair the aeroplanes owned and operated by the "San Angelo Airways," that being one of the purposes of Arnold's employment, and one of his duties. He was also called upon as one of his usual duties to repair other aeroplane engines coming to, or stopping at, San Angelo.
Under such circumstances we can see no difference in principle, nor in the application of the Workmen's Compensation Act, between an injury in "cranking" an aeroplane engine in connection with a mechanic's repair of same, and one suffered in "cranking" an automobile, truck, or tractor engine, under like circumstances. If the service involved came within the "course of his employment," which was covered by the terms of his employer's policy, we are not concerned with the danger involved in the particular task in which the employee may have been engaged. In our opinion the injury in the instant case was covered by said policy, and we see no good purpose to be served by a discussion of the numerous cases that could be cited in support of our conclusion, in which the rules applicable are discussed. The statute itself is plain and explicit, and the Supreme Court has elaborated upon it somewhat in Lumberman's Reciprocal Ass'n v. Behnken,
Only one other question remains which we deem it necessary to discuss, and what we have already said in effect disposes of that. Appellant insists that Arnold was at the time of the injury loaned to the "San Angelo Airways," was subject to its directions, and therefore not under the control of the Auto Brokerage Company. If Arnold had in fact passed out from under the control of his master, and had become subject to the party to whom he was so loaned or hired, a serious question would be presented. But the evidence was amply sufficient we think, without prolonging this opinion by setting it out here, to sustain the trial court in concluding that Arnold was at the time of the injury under the complete control and direction of the Auto Brokerage Company. He was paid by said company, under the control and direction of its manager and owner who was on the grounds, and whatever charges were made for his services were paid to his employer by the San Angelo Airways.
For the reasons stated, the judgment of the trial court is affirmed.
*437Affirmed.
