Maryland Casualty Co. v. Marshall (14 S.W.2d 337, 1929)

HALL, C. J.

The appellant company filed this suit to set aside an award made by the Industrial Accident Board to appellee, Marshall. The sufficiency of the pleadings is not questioned, and the following brief summary thereof we think is a sufficient statement of the issues for the purposes of this opinion:

The company alleged that the Accident Board had awarded to Marshall certain sums of money in excess of $500 as compensation for certain injuries sustained by him in the course of his employment by the National Drilling Company; that said drilling company was a subscriber to the Workmen’s Compensation Act, and on April 13, 1927, Marshall sustained the injuries for which compensation was claimed; that the necessary notices were given and an award made in favor of Marshall. The prayer is that the award be set aside, and that it recover its costs.

By answer and cross-petition Marshall set out the fact of his employment by the drilling company, and that while in the course of his employment he sustained certain personal injuries on April 13, 1927; that his employer was insured under the Workmen’s Compensation "Act by the appellant; that within 30 days after the date of his injuries, which were specifically described, due notice was given to the appellant; that his claim was duly filed with the Accident Board, resulting in an award in his favor in excess of $500; that the appellant had appealed from the award; that prior to the date of his injuries, he had been working for many years in Texas as an oil well driller, with a daily wage of $14 per day; that for substantially a year next preceeding the day of his injuries he had been working as a driller in Hutchinson county at a daily wage of $14; that his average weekly wage was $80.75, and that he was entitled to recover at the rate of $20 per week for a period of 401 weeks; that he was well advanced in years and by reason of his total, permanent incapacity, it would be a manifest hardship and injustice to compensate him otherwise than by a lump sum; that the company had failed to provide medical and surgical aid or pay hospital fees, and by reason of such failure he had employed a nurse at a reasonable and necessary expense of $50 to attend him in the hospital; that he was forced to undergo two operations as a result of his injuries, at a cost of $780.70. He prayed for judgment for these items in addition to $20 per week for 401 weeks.

By supplemental petition the company alleged : That the policies of insurance were not in effect at the time of the injuries sustained by Marshall, because they had been canceled by notice mailed' in accordance with the following provision of the policy: “Notice. mailed to the address of this employer shall be sufficient notice.” That notice of cancellation was mailed on March 29, 1927, and registered to the last known address of the drilling company, which notice informed the drilling company that the policy upon which the suit is based would be canceled as of noon April 9, 1927, which date of cancellation was four days prior to the date of the explosion by which Marshall was injured. As a further defense, the company alleged that Marshall’s contract of employment with the drilling company was void and unenforceable for the reason that it required him to work seven days per week, which included working on Sundays, by reason of which it was in violation of the statutes of Texas and null and void.

In reply to this pleading, Marshall alleged that if notice of cancellation was ever mailed on the 29th of March, 1927, it was never received by the drilling company and that said drilling company never had any notice, either actual or constructive, of such cancellation; that subsequent to the mailing of such notice, if any, the general agent of the company at El Paso stated to its local agent at Panhandle, Tex., that the notice of cancellation would not become effective until said local agent had secured another policy for the drilling company, in lieu of the policy now sued upon, and that said general agent told the local agent at Panhandle that the notice of cancellation might be disregarded until further notice from the company, and by such acts the company had waived and .abandoned its notice of cancellation and its intention to cancel the policy under notice of March 29, 1927; that said company further abandoned its intent to cancel the policy on April 9th by preparing and mailing a notice for cancellation on the 14th day of April, 1927, one day after Marshall had sustained the injuries upon which this action is based, which said notice stated that cancellation would be effective April 24, 1927; that the drilling company had paid all premiums due upon said policy to the local agent of appellant company up to and including the 19th day of Ajlril, 1927, which premiums were accepted and received by appellant company, thereby waiving its attempt to cancel said policy, effective April 9, 1927.

These allegations were denied by the appellant company. The case was submitted to a jury upon special issues, and in response thereto the jury found, in substance, as follows:

(1) On April 13, 1927, X E. Marshall sustained injuries resulting in the loss of hearing in his left ear and the loss and use of his left foot and leg.

(2) Such injuries resulted in Marshall’s permanent total incapacity.

(3) • The average weekly wage of Marshall for the year immediately preceding the date of the injuries was $80.75.

(4) The failure of the Maryland Casualty Company to máke a lump sum settlement would work manifest hardship and injustice to Marshall.

(5) That the Maryland Casualty Company, through its officers and agents, waived cancellation of the policy which was intended to take effect on April 9, 1927.

Based upon the verdict, the court rendered judgment in Marshall’s favor for $7,879.03. to be paid in a lump sum. The first five propositions urged attack the judgment upon the ground that because Marshall’s contract with the drilling company required him to labor on Sundays in violation of the law, the contract was void and would not sustain a recovery.

Article 283 of the Penal Code provides that any person who shall compel, force, or oblige his employees or workmen to labor on Sunday shall be fined not less than $10 nor more than $50, and article 284 provides that article 283 shall not apply to works of necessity. The term “necessity,” as used in this statute, is defined to be not an absolute, unavoidable, physical necessity, but rather an economic and moral neces’sity, and it is held that such necessity might grow out of or be incident to a particular trade or calling. Lane v. State, 6S Tex. Cr. R. 4, 150 S. W. 637 Hennersdorf v. State, 25 Tex. App. 597, 8 SW. 926, 8 Am. St. Rep. 448. Texas Employers’ Insurance Association v. Tabor (Tex. Com. App.) 283 S. W. 779, announces the rule that a contract of employment which does not conclusively show that it was intended that the employee should work on Sunday in violation of the .Penal Code referred to first above is not void as a matter of law, and that the question of intention to violate the law is an issue of fact for the jury. v

Many authorities hold that, where the terms of a verbal contract are established by undisputed testimony, its construction and interpretation is a question of law for the court. 6 R. C. L. 862, § 249. Ætna Eife Ins. Co. v. Schenck et al. (Tex. Civ. App.) 10 S.W.(2d) 206, holds that, where an employee working by the month was not engaged in the performance of services that ordinarily called for work on Sundajq but occasionally, if necessary, in the interest of the employer’s business, the employee would act to promote the master’s interest on Sunday, the contract of employment was not in violation of any law and occasional work on Sunday did not bar the right of dependents to compensation for employee’s death.

The only testimony bearing upon this contention comes from the employee, Marshall. He testified that his contract of employment with the drilling company and the nature of his work was such that it was contemplated that- he would work on straight time seven days per week; that it had to go on during seven days per week in that oil field especially. He stated, however., that he did not know that his contract specified that he should work on Sunday, and that there was no contract between him and his employer specifically requiring him to do so, but it was mutually understood that, when a well was started, it would be pushed through and the work would continue for seven days per week. Upon redirect examination, he testified that the drilling company did not ask him to work any specific length of time and that he was paid so much per daythat there was no written contract and he was not paid for such time as he did' not work; that if he worked one day, and missed the next, and worked the next day, he would be paid just for the days he worked. This testimony does not show a clear, definite contract which obligated or compelled Marshall to work on Sunday. It may reasonably be inferred that, unless he desired to work on Sunday, he was at liberty to refuse to do so without violating his obligation to his employer. His statement that in that particular oil field it was specially necessary to work on Sunday was not questioned by the appellant. It is a matter of common knowledge that, in the drilling of oil wells, certain conditions may exist oí-anse which -require the continuous prosecution of the work after an oil well is spudded in, and, so far as the record shows, we must presume, in the absence of some contradiction of Marshall’s testimony, that the necessity existed in this case. Where a contract is susceptible of two constructions, one of which would render it valid and the other illegal, the courts will construe it to be legal. The issue as to whether the work done on Sunday was necessary, within the meaning of article 284, was not submitted to the jury. We therefore overrule the first five propositions.

It is contended under the sixth and seventh propositions that the court erred in permitting the proceedings, including the award made by the Industrial Accident Board, to be introduced in evidence. The bill of exceptions in the record does not sustain these' propositions. This court held, in the case of Texas Employers’ Insurance Association v. Downing, 218 S. W. 112,120, that these proceedings were admissible for the purpose of hhowing that the court had jurisdiction of the case as appealed from the award of the board. The rule is that Marshall must show by his pleadings that the court in which the case is being tried had jurisdiction of the amount of his claim. He alleged that he filed the claim before the board for an amount in excess of $500. This was a proper allegation. In order for him to recover, he must prove what he alleged; but evidence of such matter is for the purposes of showing jurisdiction and is a question for the court only. The award should not be read to the jury. A perusal of the bill of exceptions in this case shows that Marshall’s counsel offered it for the purposes only of showing the court’s jurisdiction, and so stated during the colloquy between the court and counsel for both sides. .The bill further shows that these proceedings were not read within the hearing of the jury, and that they were filed with the clerk, to be considered only by the court, to sustain the allegation that a claim had been filed with the Accident Board in excess of $500. Bill of exception No. 6, taken to the action of the court in permitting Marshall to testify that he ha