Ætna Life Ins. Co. v. Schenck

• Decision Date: 02 November 1928
• Docket Number: (No. 1720.)
• Parties: ÆTNA LIFE INS. CO. v. SCHENCK et al.
• Court: Texas Court of Appeals

Page 206

10 S.W.2d 206

ÆTNA LIFE INS. CO. v. SCHENCK et al.

(No. 1720.)

Court of Civil Appeals of Texas. Beaumont.

November 2, 1928.

Rehearing Denied November 7, 1928.

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

Suit by Hannah Schenck, for herself and as next friend of her three minor children, against the Ætna Life Insurance Company, to set aside an award of the Industrial Accident Board denying compensation. Judgment for plaintiffs, and defendant appeals. Reversed and cause remanded.

Fulbright, Crooker & Freeman, of Houston, for appellant.

E. B. Pickett, Jr., of Liberty, for appellees.

O'QUINN, J.

This suit was brought in the district court of Liberty county, Tex., by appellees, Mrs. Hannah Schenck, for herself and as next friend of her three minor children, to set aside an award of the Industrial Accident Board of the State of Texas, made November 9, 1926, denying appellees compensation for the death of B. G. Schenck, husband of Mrs. Schenck and father of said minor children, alleged to have occurred on July 18, 1926, while in the course of his employment as an employé of the Roxanna Petroleum Corporation; appellees claiming compensation at the rate of $20 per week for 401 weeks. Appropriate and sufficient allegations were made by appellees to bring the award of the Industrial Accident Board denying compensation before the court for determination.

Appellant, defendant below, answered by general demurrer and general denial.

At the close of the evidence, appellant requested a peremptory instruction in its favor, which was denied, and the case was submitted to a jury upon special issues, in answer to which the jury found that deceased, Schenck, received the injury from which his death resulted while engaged in the course of his employment, and that appellees were entitled to receive compensation in a lump sum. Upon these findings judgment was entered in favor of appellees, from which appellant brings this appeal.

B. G. Schenck, the deceased, was an employé of the Roxanna Petroleum Corporation, which carried a policy of insurance with appellant, the Ætna Insurance Company, covering its employés under the Workmen's Compensation Act, at the time Schenck was killed by the overturning of an automobile in which he was riding. Schenck was being paid $225 per month straight time. He was engaged in the geophysical department of his employer, and had charge of one of the seismograph parties exploring acreage for oil. He had charge of both the explosives used and the crew that operated the instruments, explosives, etc. The Roxanna Petroleum Corporation furnished him a car which he used in going about attending to the business of his employer, and also as he pleased in his personal matters and for pleasure. He had free use of the car. Occasionally it became necessary for him to attend to matters pertaining to his employment on Sunday, which he did. He would go to the city of Houston on holidays and Sundays and sometimes there attended to business matters pertaining to his work on Sundays. The company did not require its employés to work on Sundays, except when they were specially requested to do so. If anything arose which in Schenck's judgment it was to the advantage of his employer to have attention on Sunday, he would attend to it without being requested to do so by any one and without consulting any one. His position was one of some authority and responsibility. The Star Electric & Engineering Company was doing business in Houston, and Schenck, in behalf of his employer, bought from it supplies such as radio accessories, wire, meters, etc., to be used in "shooting" operations in which he was engaged for his employer. He would make appointments with persons connected with the Star Electric & Engineering Company and go to Houston on Sunday to get supplies. This on his own volition. On Tuesday or Wednesday of the week of his death on Sunday, Schenck by long distance telephone ordered some merchandise from said company, and in the conversation inquired of J. P. Lindsay, the representative of said company, about a certain blasting machine, wanting to know if he could get one of said machines. Lindsay testified:

"In that conversation he asked me about a certain blasting machine that he wanted to use, that is, a shooting machine, to use for firing dynamite, and wanted to know if he could get one of those machines. I told him that he could, and would have one sent over to the warehouse, and he said he would be in the week end, and I told him that I would have the blasting machine sent over, and it would be there Sunday for them to see and examine it and see if he could use it in his particular business. He said that arrangement and that date would suit him. He mentioned that he would be in the week end, and if I could have one of the machines there he would examine it, and if it was what he was looking for he would buy it. By that expression I identified Sunday as the time he would be there for that purpose."

Lindsay further testified that he had the machine in the warehouse, and that he stayed at his place of business until noon Sunday waiting for Schenck, but that he did not come. Lindsay had no telephone in his name, and when Schenck telephoned him it was at the store 'phone. Lindsay further testified that when Schenck had business with them on Sunday he usually came in the morning, and that when he did not come by noon that day he concluded that he had "not made connection and had not gotten in," and assumed that deceased had abandoned the trip.

A Mr. Dupree was also an officer of and in active charge of the store of said company, and dealt...