American States Ins. Co. v. Walters
| Decision Date | 24 June 1982 |
| Docket Number | No. 1494,1494 |
| Citation | 636 S.W.2d 794 |
| Parties | AMERICAN STATES INSURANCE COMPANY, Appellant, v. Pamela WALTERS, Guardian and Next of Friend of Ivan Robert Justice, Appellee. |
| Court | Texas Court of Appeals |
Patrick F. McGowan, Strasburger & Price, Dallas, for appellant.
This is a suit for worker's compensation. Pamela Walters as guardian and next friend of Ivan Robert Justice, a minor, brought suit for worker's compensation death benefits alleging that Ivan Michael Justice had been killed in the course and scope of his employment. From a judgment favorable to claimant, the insurer appeals.
We reverse and render.
Appellant brings five points of error. The first point of error is dispositive of the appeal. Appellant contends there was no evidence to support the jury finding that the deceased Ivan Michael Justice died in the course and scope of his employment. We must agree.
When the contention is made that there is no evidence to support a jury finding, this court must consider only the evidence and inferences from the evidence which support the jury finding and disregard all evidence and inferences to the contrary. Elliot v. Great Nat'l Life Ins. Co., 611 S.W.2d 620 (Tex.1981); Stodghill v. Texas Employers' Ins. Ass'n, 582 S.W.2d 102 (Tex.1979); Texas Employers' Ins. Ass'n v. Goad, 622 S.W.2d 477 (Tex.App.--Tyler 1981, writ ref'd n. r. e.).
The facts of this case are undisputed. The decedent, Ivan Michael Justice (Justice), was an employee of Richard Lamport & Associates, Inc. The principal business of Richard Lamport & Associates, Inc. was interior design and finishing. Justice was employed as the company's director of design. The decedent was described as the "right-hand man" of his employer, Richard Lamport (Lamport), president of the company. Justice frequently accompanied Lamport on business trips.
The record indicates that on Saturday, June 11, 1977, Justice and Lamport went to meet a client at the Airport Marina Hotel near the Dallas/Fort Worth Airport. At 2:00 p. m. that same afternoon both Justice and Lamport were found shot to death. Justice's body was in an open field west of Love Drive and south of Royal Lane in Irving, Texas. The autopsy showed that Justice died from multiple distant gun shot wounds to the back, and it was concluded that his death was homicide. Only two witnesses, Tom Zbaren (Zbaren) and Yumiko Popp (Popp), testified as to Justice's activities during the last two days of his life.
Zbaren, an employee of Richard Lamport & Associates, Inc., testified that on Thursday before the Saturday when Lamport and Justice were shot, Zbaren took a call from a person interested in doing a restaurant project. The man was primarily interested in seeing Lamport and stated he would call back. Zbaren testified that Lamport told him to make an appointment with the man if he called back; however, Zbaren testified that he did not talk to that person again and could not say for sure whether that man arranged to have a business appointment with Lamport or Justice. The last time Zbaren saw Lamport and Justice was Friday evening when he passed them in a car leaving the office.
Yumiko Popp testified that at the time of Lamport's death she was his girl friend and they owned a town house together. Popp had come from Japan five and one-half years previously and worked at the Sakura Japanese Restaurant. She was studying interior design at El Centro College. Lamport had made her secretary/treasurer and vice president of the company.
Popp testified that on the day before the murder, she received a phone call from a person named "Bill." The man wanted to talk to Lamport about an interior design job for a restaurant and club in the Dallas area. At that time, Lamport was with Justice in Abilene on another job.
The man again called Popp and Lamport's residence on Friday night at 7:00 or 8:00 o'clock. Popp testified that Lamport answered the phone and although she could hear what he was saying she could not hear what was being said to him. She does not remember what Lamport stated; however, later Lamport told her that the man wanted to talk about an interior design job with Lamport and they were going to meet the next day at the Airport Marina Hotel at the Dallas/Fort Worth Airport. Lamport called Justice to discuss it before going to the meeting and asked Justice to come over to the house. Lamport wrote on a pad of paper "Marina Hotel, 11:00" and the name "Bill Stephens."
On the day of the killing Justice came by and picked up Lamport to go to the airport to meet "Bill Stephens." This was the last time Popp saw them alive. Popp stated that she did not know what Lamport and Justice did from the time they left the house until their bodies were found.
The Worker's Compensation Act, art. 8306 § 1 1 covers: "damages for a personal injury sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained ...." Article 8309 § 1 defines injuries sustained in a course of employment so as to exclude:
An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.
The exclusion for intentional injury has been held applicable only where there existed in the mind of the assailant a pre-existing malice causing the assailant to follow the employee and inflict injury upon him wherever he, the employee, might be found. Vivier v. Lumbermen's Indemnity Exch., 250 S.W. 417 (Tex.Comm'n App.1923, judgmt adopted); Texas Employer's Ins. Ass'n v. Dean, 604 S.W.2d 346 (Tex.Civ.App.-El Paso 1980, no writ). The burden of proof is upon the claimant to show that an assault upon him was directed against him as an employee or because of his employment. Davis v. Maryland Casualty Co., 243 F.2d 463 (5th Cir. 1957); Highlands Underwriters Ins. Co. v. McGrath, 485 S.W.2d 593 (Tex.Civ.App.-El Paso 1972, no writ); Aetna Casualty & Surety Co. v. England, 212 S.W.2d 964 (Tex.Civ.App.-Beaumont 1948, no writ).
In Wall v. Royal Indemnity Co., 299 S.W. 319 (Tex.Civ.App.-Fort Worth 1927, no writ), an employee was murdered just after leaving his job. The court in sustaining the insurer's general demurrer held that although Wall was killed at his place of employment, absent facts showing the killing was related to his employment, injuries caused by the intentional acts of third persons were not compensable.
In Fidelity & Casualty Co. of New York v. Cogdill, 164 S.W.2d 217 (), the claimant while working for his employer was struck from behind by a man carrying a blackjack. The San Antonio court in reversing a judgment for plaintiff noted that there was no evidence as to the motive for the attack. The court concluded that "then the cause and purpose of the assault are left wholly to surmise and...
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Walters v. American States Ins. Co.
...reversed the judgment, holding there was no evidence to support the jury's verdict, and rendered judgment that Walters take nothing. 636 S.W.2d 794. We reverse the judgment of the court of appeals and remand to that court to consider the factual sufficiency of the At the time of his death, ......
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American States Ins. Co. v. Walters
...appeal the cause was reversed and rendered in favor of said defendant on the basis there was no evidence to support the jury's finding. 636 S.W.2d 794. The Supreme Court, 654 S.W.2d 423, granted writ of error and thereafter reversed and remanded the cause to this court solely for considerat......