Associated Employers Lloyd v. Groce, 13657.

• Decision Date: 11 January 1946
• Docket Number: No. 13657.,13657.
• Citation: 194 S.W.2d 103
• Parties: ASSOCIATED EMPLOYERS LLOYDS et al. v. GROCE et al.
• Court: Texas Court of Appeals

Page 103

194 S.W.2d 103

ASSOCIATED EMPLOYERS LLOYDS et al. v. GROCE et al.

No. 13657.

Court of Civil Appeals of Texas. Dallas.

January 11, 1946.

Rehearing Denied February 15, 1946.

Appeal from District Court, Grayson County; Jesse F. Holt, Judge.

Suit under the Workmen's Compensation Act by Helen Louise Groce, as next friend of her husband, John N. Groce, compensation claimant, to set aside an award of the Industrial Accident Board in favor of the Associated Employers Lloyds, insurance carrier, and the Hardwick-Etter Company, a corporation, employer. From a judgment in favor of the claimant, the insurance carrier and employer appeal.

Judgment affirmed.

A. F. (Jack) Nossaman, of Sherman, and Touchstone, Wight, Gormley & Touchstone, of Dallas, for appellant.

O. H. Woodrow, of Sherman, for appellee.

LOONEY, Justice.

This is a compensation case. Helen Louise Groce, as next friend of her husband, John N. Groce, appellee, previously confined in an asylum for insane located at Wichita Falls, appealing from an adverse decision of the Industrial Accident Board, filed suit in the court below complaining of the Associated Employers, Lloyds and its attorney, J. M. Ferguson, the insurance carrier, appellants herein. The Hardwick-Etter Company, a corporation engaged in producing shells for the United States Government for use by the Army and Navy in prosecuting the late war, was the employer.

The suit was based, in substance, on the contention that appellee was injured in the course of his employment with the Hardwick-Etter Company by being assaulted by a fellow-employe, knocked down, his head striking the floor with such force as to produce concussion and laceration, some of the membranes of the brain being disturbed, rendering appellant unconscious for some days, after regaining consciousness was totally and permanently insane and incapacitated to labor and earn money in the future; that appellee's injuries had to do with and originated in the business and work of his employer, were received while appellee was engaged in and about the furtherance of the affairs and business of the employer, and upon its premises where appellee was wont to work and discharge his duties.

Answering appellee's amended petition, appellants either directly denied or declined to concede any of the allegations contained in the pleadings, and affirmatively alleged that the injuries sustained by appellee were not accidentally sustained in the course of his employment with Hardwick-Etter Company, as that term is defined in Art. 8306, Vernon's Ann.Rev.Civ.St.; but were sustained in a physical encounter with a fellow-worker by the name of Waldrum provoked by the willful and unlawful conduct of appellee; and further, that if he is suffering from any disability, which was denied, same was due to other causes and not to an assault by a co-worker as alleged.

At the conclusion of all testimony, the case was submitted on special issues, in response to which the jury found that appellee Groce was injured in the course of his employment; that the same resulted in his total permanent disability; was not caused by his willful intention and attempt to unlawfully injure his fellow-employe; that the difficulty between appellee and his co-worker arose out of and was incident to the work of the employer; was not due solely to the disease from which appellee was suffering at the time, and that the injury received was the exciting and producing cause of appellee's present disability. The jury also found in favor of appellee for a lump sum payment. Based upon these findings, the court rendered judgment in favor of the appellee, from which appellants prosecuted this appeal.

Appellants' points of error, Nos. 1, 2, 3 and 14, will be grouped and considered together because, in our opinion, they present but one general question; that is, that the evidence was wholly insufficient to establish liability or to sustain the findings of the jury on that question. After a careful review and consideration of all pertinent evidence, we have reached the conclusion that the findings of the jury and judgment of the court based thereon, are amply supported by evidence; hence adopt the findings of the jury on the question of liability as our conclusions of fact on the issues.

Although the statement of facts is quite lengthy, we will recite the evidence bearing upon the question of liability, and, at the beginning of this task, are admonished to observe the rule that "If, discarding all adverse evidence, and giving credit to all evidence that is favorable to the successful party, and indulging every legitimate conclusion that is favorable to him, a jury might have found in his favor, then it is to be concluded that there is evidence to support the verdict." The doctrine just quoted is sustained by numerous authorities; among others, Commercial Standard Ins. Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1; Texas Employers' Ins. Ass'n v. Mask et al., Tex.Civ.App., 180 S.W.2d 369; Traders & General Ins. Co. v. Diebel et al., Tex.Civ.App., 188 S.W.2d 411.

As heretofore stated, both Groce, the injured man, and Waldrum who injured him, were employes of Hardwick-Etter Company of Sherman, Texas, engaged in producing shells for the government to be used by the Army and Navy in prosecuting the late war; these employes worked in the same department or room of the plant where shells otherwise finished were steamed, cleansed by a blower, cooled by being rotated in a cooling apparatus, and then placed upon a conveyor which carried them to a booth for inspection by a government representative. This work was continuous in nature and was conducted by three eight-hour shifts of three men each; the other members of the shift to which Waldrum belonged were Adolph Klosterman and E. L. Cooper—Klosterman being foreman of the shift which took over at 7 a.m. and worked until 3 p.m., when the shift to which Groce belonged and of which he was foreman took over and worked until 11 p.m. Neither Groce nor Waldrum exercised any authority over the other. These employes were required to be on the premises and at the place where they worked at least fifteen to twenty minutes before they were required to begin work; this in order that without delay they would be ready to promptly take over when the time arrived for the preceding shift to withdraw; and it seems it was further contemplated that each shift would dispose of its work so as to prevent an accumulation of unfinished work to be taken over and performed by the succeeding shift. There was also maintained in this department a place or service called the hospital, where defective shells were corrected and after being corrected were placed in a buggy, rolled out and placed conveniently to be steamed, cooled, etc., and sent to the booth for inspection.

On July 6, 1944, as was his duty, Groce came upon the premises and to the place where he worked fifteen or twenty minutes before 3 p.m., when the shift he supervised was to begin work, and finding in the hospital about 40 shells in the buggy brought them out to be worked when the shift of which he was supervisor would take over in a few minutes. It seems that he was somewhat angered because the shift then at work had permitted these shells to accumulate, accused them of loitering on the job, stating that they should have cleaned up the work before checking out. The testimony shows that Groce uttered a stinging rebuke to members of the shift which included Klosterman, Waldrum and Cooper, using profanity and also, as some of the witnesses stated, obscenity of a nature calculated to arouse anger and resentment. Although Groce addressed these remarks to Waldrum who was working at the cooler, they involved the entire shift and were heard by Klosterman, supervisor, who was standing nearby. Waldrum testified that he made no reply whatever to the severe remarks of Groce; however, on this point he was sharply contradicted by Klosterman who, on being questioned, testified:

"Q. Did Waldrum say anything back to him? A. Waldrum asked him if he wanted —who he was, if he wanted to take charge.

"Q. What did he (Groce) say? A. He said `No, it wasn't time for him to go to work.' He (Waldrum) says: `All right then, we are running this shift, just leave this alone.'

"Q. So what happened? A. So I just immediately stepped in and just touched Waldrum on the shoulder and said `Forget it; let's forget the whole deal.' I says `I know the situation of the case.' * * *

"Q. Was anything else done? A. Not a thing was done right then, but Mr. Waldrum stated that he didn't like the way he (Groce) started. I said `You heard me, let's forget it.' And I went on about my duties presuming everything was settled."

The record fails to disclose that anything out of the ordinary happened the next day between Groce and the other employees, but two days later on the 8th of July Groce came in about fifteen or twenty minutes before 3 o'clock and, without saying a word to anyone, went over to the cooler where Waldrum was at work, picked up a shell (whether hot or cold, evidence confusing, but we think immaterial) and was in the act of placing it upon the conveyor to be carried to the government booth for inspection when Waldrum interfered and forcibly took the shell away from Groce; Waldrum testified that in so doing he struck and pushed Groce out of the way. Without saying anything or in any manner resenting or retaliating, Groce picked up another shell from the cooler.

At this juncture we interrupt the narrative (to be resumed later) to observe that what Groce said to his co-workers of July 6, of an insulting or offensive nature, and what he did on July 8 in taking shells from the cooler while in charge of Waldrum, in our opinion (and it seems in the opinion of the jury) was said and done to hasten shells to the booth for inspection; and although the conduct of Groce may have been officious and the language employed severe, nevertheless he was...