Bishop v. LUMBERMENS MUTUAL CASUALTY COMPANY

• Citation: 228 F.2d 1
• Decision Date: 18 January 1956
• Docket Number: No. 15683.,15683.
• Parties: Martha L. BISHOP, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

228 F.2d 1 (1955)

Martha L. BISHOP, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Appellee.

No. 15683.

United States Court of Appeals Fifth Circuit.

December 21, 1955.

Rehearing Denied January 18, 1956.

C. Coit Mock, Wichita Falls, Tex., Mock, Richie & Spell, Wichita Falls, Tex., for appellant.

H. W. Fillmore, Wichita Falls, Tex., Bullington, Humphrey, Humphrey & Fillmore, Wichita Falls, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

Brought by the widow of Seth Bishop, deceased, under the Texas Workmen's Compensation Act, Vernon's Ann.Civ.St. Tex. art. 8306 et seq., the suit was for the statutory benefits which it was claimed were provided for his death. The claim was that while employed by Cicero-Smith Lumber Co., defendant's insured, and while working in the course of that employment on a house belonging to one Pace who had engaged the lumber company to furnish the labor and material for it, her husband sustained accidental injuries resulting in his death and entitling her to the compensation sued for.

Defendant admitted that under an arrangement with Pace, that he was to repay the lumber company therefor, it had furnished Pace the material and had paid the wages of Bishop and Doyle who as carpenters worked on Pace's job. Asserting, however, that these two were merely recommended by it to, and were hired by, Pace as his own employees, it denied (1) that Bishop was its employee, and (2) that his death was accidental and compensable. In addition, it pleaded affirmatively that the deceased was extremely heavy and overweight and that his death resulted not from an accidental injury but from a diseased heart and heart failure therefrom.

On the issues thus joined, the cause was tried to a jury, and at the conclusion of the testimony of plaintiff's witnesses, Mrs. Bishop,¹ Doyle,² Bishop's co-worker, Pace,³ upon whose home they worked, and Dr. Parnell,⁴ the district judge, on defendant's motion, instructed⁵ a verdict for defendant and entered judgment accordingly.

Appealing therefrom, plaintiff is here insisting that there was sufficient evidence of probative force to take the case to the jury on the issues of employment and accidental injury. In support, summarizing the evidence, as we have set it out in note 1, supra, and citing cases⁶ declaring and applying the controlling principles, she urges upon us that the judgment must be reversed.

Appellee, on its part, citing and relying in support of his primary contention on Maryland Casualty Co. v. Gray, 5 Cir., 103 F.2d 493, vigorously urges upon us that here, as there, the injured person was not an employee of the lumber company.

It is true that in that case we did hold that the plaintiff, who was hurt while engaged as a carpenter in building a house for the owner, was not the employee of one Rice, the owner of a lumber yard, who had agreed to furnish part of the material to the owner and to advance money for his payroll. But the facts in that case, as stated in the opinion,⁷ completely distinguish it and the authorities it cites from this one.

In support of its alternative contention, that plaintiff's evidence was not sufficient to take the case from the jury on the issue of accidental injury, but, on the contrary, showed as matter of law that Bishop's death was not compensable, appellee, citing and relying on Houston Fire & Casualty Ins. Co. v. Biber, Tex.Civ.App., 146 S.W.2d 442, points to the testimony of Doyle, that the activity on the date in question was "just average like we had been working", and to the medical testimony as speculative and lacking in probative force.

While we can and do agree that plaintiff's testimony was far from conclusive, we cannot agree that it was so lacking in probative force as to require an instructed verdict on this issue. As correctly pointed out by appellant, the term "injury" as defined in the compensation statute, Art. 8306, Sec. 20 has been further elucidated in the decisions to include "`the incitement, acceleration or aggravation of any disease previously or subsequently existing by reason of such damage or harm to the physical structure of the body.'" Southern Underwriters v. Parker, Tex.Civ.App., 129 S.W.2d 738, 742.⁸ Under the teachings of these authorities, plaintiff's evidence, while not conclusive, was certainly ample to take her case to the jury on the issue of whether her husband's death was compensable.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent herewith.

1 Viewed in the light most favorable to plaintiff, the testimony of Mrs. Bishop was that Seth Bishop had been doing carpenter work for the past eighteen years; that he had been...