Associated Employers Lloyds v. Wiggins

• Decision Date: 06 February 1948
• Docket Number: No. 14917.,14917.
• Citation: 208 S.W.2d 705
• Parties: ASSOCIATED EMPLOYERS LLOYDS v. WIGGINS.
• Court: Texas Court of Appeals

208 S.W.2d 705

ASSOCIATED EMPLOYERS LLOYDS v. WIGGINS.

No. 14917.

Court of Civil Appeals of Texas. Fort Worth.

February 6, 1948.

Rehearing Denied March 5, 1948.

Appeal from District Court, Tarrant County; R. B. Young, Judge.

Suit between Associated Employers Lloyds and Lexie Wiggins to set aside an award of the Industrial Accident Board. From a judgment awarding Lexie Wiggins workman's compensation for the death of her husband, Charley Wiggins, the Associated Employers Lloyds, insurance carrier, appeals.

Affirmed.

Collins & Taylor, of Fort Worth, for appellant.

Freeman & Wardlaw, Sam Woodward, Ardell M. Young, and M. Hendricks Brown, all of Fort Worth, for appellee.

McDONALD, Chief Justice.

The appeal is from a judgment awarding appellee a recovery of workman's compensation for the death of her husband.

Appellant, the insurance carrier, moved for an instructed verdict, and later for judgment non obstante veredicto. It contends that there is no evidence to show that the employee received the fatal injury in the course of his employment. The evidence, considered in the light most favorable to the verdict, is sufficient to show the following: Charley Wiggins, a Negro, had been employed by Bewley Mills, in Fort Worth, for many years prior to his death. He did various kinds of work in and around the mill, including the washing and greasing of cars and trucks. Although there is some conflict in the evidence about it, there is testimony to the effect that he was in the habit of driving cars from a loading dock to a wash and grease, rack a short distance away. On the employer's premises there was located a warehouse which was bounded on the east by Frank Street, and on the south by Ninth Street. The dock was on the south side of the warehouse, on Ninth Street, and the wash and grease rack and the garage were north of the warehouse. The evidence shows that Wiggins would walk from the wash and grease rack to the dock either through the warehouse or along Frank Street. About three o'clock in the afternoon of November 24, 1945, some two hours before the end of his usual hours of employment, Wiggins left the garage and proceeded south on Frank Street alongside the warehouse. As he did so, a bottle thrown from a window of the warehouse struck him on the head. The evidence does not show who threw the bottle or why it was thrown. He went into the warehouse and asked some other Negro employees there if they knew who threw the bottle. None of them admitted having done so, whereupon Wiggins went outside and returned with a piece of the bottle in his hand, and again sought to find out who threw the bottle which struck him. He became engaged in an altercation with Kirk McKenzie, one of the Negro employees in the warehouse. McKenzie stabbed Wiggins with a knife, and Wiggins died within a few minutes. While there is some testimony to the effect that Wiggins used abusive language toward McKenzie and that McKenzie was acting in self-defense, there is other testimony to the contrary, showing that McKenzie made an unwarranted attack on Wiggins. There is no evidence of any previous trouble between the two men.

There is no direct evidence showing whether Wiggins was on a mission for his employer as he walked along Frank Street, when he was hit by the bottle, or whether he was on a personal mission having nothing to do with his employer's business. The evidence shows that the employees, including Wiggins, often went across the street to a drug store, or to a cafe, and appellant argues that the facts and circumstances established by the direct evidence are equally as consistent with an inference that he was on a mission of his own as with an inference that he was on a mission for his employer. We do not agree with this contention. At the time he was hit by the bottle, Wiggins was traveling a route customarily traveled in the performance of his duties. He was dressed in the overalls and rubber boots which he usually wore when washing and greasing cars. He was seen driving cars from the dock to the wash rack on the day of his death, and was working on a car within thirty minutes of the time he left the garage and walked south on Frank Street. It was during his regular working hours. There being nothing to show that he was on a mission of his own, we think that the more logical inference to be drawn from the facts and circumstances proved is that he was engaged in the performance of the duties of his employment at the time he was struck by the bottle. By analogy we might apply the following rule, as it is stated in the annotation appearing in 120 A.L.R. 683, 684:

"It is generally held that when it is shown that an employee was found dead at a place where his duties required him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master's business, there is a presumption that the accident arose out of and in the course of the employment within the meaning of the compensation acts."

But even if he had temporarily left his work to go to the cafe or drug store or to run some errand not connected with his employment, we are not prepared to hold as a matter of law that his fatal injuries were not received in the course of his employment. He was struck by the bottle at a place where he often was and would be in carrying out the duties of his employment. The bottle appeared to have come from a window of the employer's premises. It was a natural thing for him to do to investigate and try to determine the source of this peril. So far as Wiggins knew, the danger might recur at a time when he would be on duty.

In either event, we think that Wiggins' acts in investigating the incident were so closely connected with his employment that it could not be said here, as a matter of law, that there was no evidence to support the finding of the jury that the injury was received in the course of his employment.

We shall not again restate the rules and review the authorities pertaining to award of workmen's compensation for injuries received by an employee in an altercation which grows out of the circumstances of his employment. See McClure v. Georgia Casualty Co., Tex.Com.App., 251 S.W. 800; Indemnity Ins. Co. of North America v. Scott, Tex.Civ.App., 278 S.W. 347, affirmed by the Supreme Court, Tex.Com. App., 298 S.W. 414; Aetna Life Ins. Co. v. Windham, 5 Cir., 53 F.2d 984; Southern Surety Co. v. Shook, Tex.Civ.App., 44 S.W.2d 425, writ refused; Travelers' Ins. Co. v. Culpepper, Tex.Civ.App., 82 S.W. 2d 1054, writ dismissed; Traders & General Ins. Co. v. Mills, Tex.Civ.App., 108 S.W.2d 219, writ dismissed; Commercial Standard Ins. Co. v. Austin, Tex. Civ.App., 128 S.W.2d 836, writ dismissed, correct judgment; Consolidated Underwriters v. Adams, Tex.Civ.App., 140 S.W. 2d 221, writ dismissed, correct judgment.

The cases cited by appellant are distinguishable from the one on appeal. Service...