Opinion
No. A-494.
Decided May 23, 1945.
1. — Negligence — Juries.
Whether the action of a building engineer and his assistant in going upon the top of an elevator to make repairs was the negligence which caused the death of the engineer, when elevator company's mechanic went into the cage of the elevator and put it in motion, was a question for the jury.
2. — Trespassers — Negligence.
Building engineers who had been employed to do work in connection with the installing of elevator, by elevator company, and to make repairs thereon were not trespassers while on top of elevator cage, making repairs, and it was the duty of the elevator company's mechanic to exercise ordinary care for such employees and the company was liable for his failure to do so, in going into the cage and starting same upward while said employees were so engaged.
3. — Workmen's Compensation — Insurance.
An insurance company which has taken all steps necessary to qualify it as a workmen's compensation carrier, has a right to issue insurance on its own employees in its own home office building.
4. — Workmen's Compensation.
An alleged negligent third party is not concerned in compensation paid by an insurance carrier under a workmen's compensation policy, and out of damages recovered by beneficiary from said third party the compensation carrier is entitled to be reimbursed for compensation benefits paid by it to the claimants.
5. — Abatement — Appeal and Error.
A sworn statement by the adult son of a claimant for damages because of the death of her husband, to the effect that he has no claim, under the facts in controversy, to any portion of said amount, and further that he assigns any interest that he might have therein to his mother, filed after the completion of the record for the appellate court, comes too late to cure the failure to make said son a party to the original suit, in face of the contention that the suit should be abated because of the nonjoinder of said adult son as a party in said suit.
Error to the Court of Civil Appeals for the Second District, in an appeal from Tarrant County.
This is a suit by Mrs. Charles M. Allen against the Otis Elevator Company for damages for the death of her husband. who was killed while making repairs on top of a stalled elevator in the Trinity Building in the City of Fort Worth. The suit was based upon the negligence of the said Elevator Company, by reason of its mechanic entering the cage of said elevator, while it was locked and the current off, and who turned on the master switch, started the elevator upward, crushing the husband of plaintiff. C.G. Thrash, an assistant to Allen, was injured and joined in the suit by Mrs. Allen, by intervention. The Commercial Standard Insurance Company, the insurance carrier of the elevator company, who had made settlement with both Mrs. Allen and Thrash for workmen's compensation intervened for the recovery of the amounts paid. Judgment was awarded to plaintiff and intervenor with the right of subrogation by the insurance carrier. That judgment was affirmed by the Court of Civil Appeals, 185 S.W.2d 117, and defendant elevator company has brought error to the Supreme Court.
The case was submitted to the Court sitting with the Commission of Appeals, and an opinion written by Mr. Judge Taylor of the Commission was adopted as the opinion of the Court.
As to Mrs. Allen, the judgments are reversed and the cause is remanded to the trial court. As to Thrash the judgments are affirmed.
W.B. Handley, of Dallas, for petitioner.
On the question that said suit should have been abated because Mrs. Allen's son was not made a party to the suit, even though he was an adult. San Antonio A.P.R.R. Co. v. Mertink, 101 Tex. 165, 105 S.W. 485; International G.N.R.R. Company v. Acker, 128 S.W.2d 506.
On the proposition that Allen and Thrash were trespassers see Vermont Street M.E. Church v. Brose, 104 Ill. 206, 9 C.J. 732, sec. 70; Farmers Mechanics Natl. Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120.
Cantey, Hanger, McMahon, McKnight Johnson and J.A. Gooch, for Mrs. Allen, Martin, Moore Brewster, for C.G. Thrash, and Buck Kemble, for Commercial Standard Insurance Company, all of Fort Worth, for respondents.
Allen and Thrash were not trespassers on the top of the elevator cage, but had a perfect right to go there for the purpose of making repairs. Moreman Gin Co. v. Brown, 291 S.W. 946; Fidelity Cas. Co. v. Llewelyn Iron Goods, 42 Cal.App. 766, 184 P. 402.
This suit arose out of an elevator accident in the Trinity Building, Ft. Worth, in which Charles M. Allen, the building engineer, was crushed and killed and C.G. Thrash, his assistant, was injured. Allen and Thrash were atop the stalled elevator repairing it when A.E. Breeland, Otis Elevator Company mechanic, entered the elevator and turned on the master switch, causing the car to move upward with the result stated. The Trinity Building carried workmen's compensation insurance covering the building employees, in Commercial Standard Insurance Company, which owned the building. The compensation insurance carrier settled with both Mrs. Allen and Thrash, by payments to them respectively of compensation benefits.
Mrs. Allen filed suit in which Thrash joined by intervention, against the elevator company as negligent third party, recognizing in her pleadings, as did Thrash also, the subrogation right of recoupment of the insurance company. The company also intervened in the suit.
Jury findings were returned favorable to Mrs. Allen and Thrash, respectively, in line with their pleadings. The Court of Civil Appeals in an opinion fully and clearly stating the nature and result of the suit, affirmed the trial court's judgment based on the findings. 185 S.W.2d 117. See the Court's opinion for a fuller statement of the nature and result of the suit.
1 Eight points of alleged error were urged by the appellant elevator company in the Court of Civil Appeals, and the same points were urged in the application for writ of error. None of the points complain of the jury's findings that the negligence of the company's mechanic, Breeland, in starting the elevator proximately caused the accident and resulting injuries. Points VII and VIII allege however that the evidence showed as a matter of law that both Allen and Thrash were guilty of contributory negligence. We concur in the holding of the courts below on these points in that the evidence showed, as pointed out by the Court of Civil Appeals that both exercised care for their safety in conforming to the practice theretofore followed and established in the matter of the assisting of Breeland by Allen and Thrash in repairing the elevators. Points VII and VIII are overruled.
2 For the same reason we overrule point VI, which complains that Allen and Thrash, building, and assistant building, engineers, respectively, (who at the time of the accident were working on the elevator in customary fashion) were trespassers. Being at work on the elevator under the circumstances pointed out, they were obviously not trespassers.
The decision of points IV and V and II depend upon the decision of point I, presently to be made, for the reason that they are based on the allegation ultimately that the insurance company was not a compensation insurance carrier. Point II complains also that the intervention of Thrash and the insurance carrier were premature in that the amount of compensation benefits had not then been finally adjudicated or determined; point IV, that the benefits paid were voluntary in that the insurance company was not a compensation insurance carrier, and point V that the payment of compensation benefits fully satisfied Mrs. Allen's cause of action in that the insurance company was not a subscriber under the workmen's compensation law, and was a joint tort feasor with the elevator company.
3 The gist of the elevator company's first point is that the Commercial Standard Insurance Company, the owner of the Trinity Building, could not carry compensation insurance on its own employees, and that therefore there was no valid compensation insurance covering Allen and Thrash, and that for this reason the compensation carrier was a volunteer in making payments of compensation benefits. We overrule this point on the grounds later to be stated.
The following stipulation to which the elevator company was a party, appears in the record:
"That * * * on the 1st day of January, 1942, Commercial Standard Insurance Company was duly authorized under the laws of the State of Texas and particularly the Workmen's Compensation Act * * * to issue workmen's compensation insurance. That it had done all things necessary to qualify it to issue such insurance, and under the provisions of Section 2 of Article 8309, * * *, it had acquired the right to insure the liability and pay workmen's compensation to any and all employers who were eligible to carry insurance in the State * * *. That at all times since, the * * * Company has been duly licensed and properly qualified to issue workmen's compensation policies * * *. That on January 1, 1942, it issued to Commercial Standard Insurance Company a standard form of Workmen's Compensation policy, which form has been duly and regularly approved by the Insurance Commission of the State * * *, covering employees of the Commercial Standard Insurance Company engaged in the care, custody and maintenance of the Trinity Building, including the operation of elevators, heating, lighting and power apparatus. That a copy of said policy was filed with, and approved by the Board of Insurance Commissioners on the 15th day of January, 1942, and was filed with the Casualty Insurance Commissioner on January 7, 1942, and was filed with the Industrial Accident Board on January 15, 1942, and thereafter said policy was in full force and effect until the 1st day of January, 1943. That Commercial Standard Insurance Company as the employer of Charles M. Allen and Charles G. Thrash gave notice to the Industrial Accident Board * * * that it had become a subscriber to the Workmen's Compensation Law, * * *. That notices were posted in the Trinity Building, notifying Charles M. Allen and Charles G. Thrash that Commercial Standard Insurance Company had issued its policy of insurance under the Workmen's Compensation Law * * *. That the building known as the Trinity Building, was at all times during the year 1942 owned by Commercial Standard Insurance Company, and that said building was maintained and operated as a separate part of the Company's properties * * * as the Home Office of said insurance company. * * * That the premium for said policy was actually paid to Commercial Standard Insurance Company, and the necessary reserves were provided as required by the Insurance Commission of the State * * *. That on September 2, 1942, Commercial Standard Insurance Company had more than three (3) employees engaged in the operation and maintenance of the Trinity Building, * * *."
We rest our decision in overruling petitioner's first point, on the right (in the absence of statutory prohibition) accorded by the provisions of section 2 of Article 8309 set out by the Court of Civil Appeals in its opinion. It appears from the stipulation quoted above that the insurance company and the parties covered by the compensation policy issued by it regarded the company as a "subscriber" carrying compensation insurance for the protection of its building employees. It also appears to have been stipulated,
"That Mrs. Charles M. Allen and Charles G. Thrash and Commercial Standard Insurance Company have at all times assumed the validity of the workmen's compensation policy, and each of the parties has assumed that such policy was duly issued and was in full force and effect at the time of the accident on September 2, 1942 and that said sums have been paid as herein set out in good faith by Commercial Standard Insurance Company, believing it is liable under the terms of said policy, and that such sums have been received by the respective parties, assuming that they were entitled under the Workmen's Compensation Law to such payments."
4 The compensation paid Mrs. Allen and Thrash by the Insurance carrier under its policy contract was in no sense voluntary, and it was of no concern to the alleged negligent third party, the elevator company, that out of the damages recovered against it the compensation insurer was reimbursed for the compensation benefits paid by it to the claimants. Foster v. Langston, 170 S.W.2d 250. Since points II, IV and V could be sustained only in event petitioner's first point was sustained, they likewise are overruled.
The writ was granted on petitioner's third point, alleging that Mrs. Allen's suit should have been abated for non joinder of Mr. Allen's adult son, George Allen, who was a beneficiary under the death injury statutes, articles 4675, 77, R.C.S. 1925.
Counsel for Mrs. Allen have gone to considerable pains to cure the alleged error by procuring, since the case has been on appeal, a sworn statement from the son to the effect he had no claim under the facts and that he was thereby assigning to Mrs. Allen any and all claims which he could have in the premises. Petitioner insists that the action taken to cure the error of non joinder of a necessary party is unavailing for such purpose. Since the written statement relied upon by counsel for Mrs. Allen to cure the error was executed too late (in the absence of an agreement by the parties) to be included in a record which we could probably consider, petitioner's point No. III must be sustained. The judgment of the Court of Civil Appeals sustaining that of the trial court in favor of Mrs. Allen, is therefore reversed and her cause remanded for another trial.
Since the cause of action and judgment in favor of Thrash is severable from Mrs. Allen's cause of action and judgment, the judgment of the Court of Civil Appeals affirming that of the trial court in his favor, is affirmed.
It is so ordered.
Opinion adopted by the Supreme Court May 23, 1945.