Boatright v. Georgia Casualty Co.

• Court: Texas Court of Appeals
• Writing for the Court: Fly
• Citation: Boatright v. Georgia Casualty Co., 277 S.W. 802 (Tex. App. 1925)
• Decision Date: 04 November 1925
• Docket Number: (No. 7423.)
• Parties: BOATRIGHT v. GEORGIA CASUALTY CO.<SMALL><SUP>*</SUP></SMALL>

277 S.W. 802

BOATRIGHT v. GEORGIA CASUALTY CO.^*

(No. 7423.)

Court of Civil Appeals of Texas. San Antonio.

November 4, 1925.

Rehearing Denied. December 5, 1925.

Error from District Court, Val Verde County; Joseph Jones, Judge.

Suit by J. B. Boatright against the Georgia Casualty Company. Judgment for defendant, and plaintiff brings error. Affirmed.

G. P. Arnold, of Del Rio, for plaintiff in error.

John J. Foster and Ben F. Foster, both of Del Rio, and Birkhead, Lang & Beckmann and Harold K. Stanard, all of San Antonio, for defendant in error.

FLY, C. J.

This is a suit by plaintiff in error to recover accident insurance from defendant in error in some sum not obtainable from the prayer, except, perhaps, by a calculation. The parties to this writ of error will be called plaintiff and defendant for brevity.

The evidence was heard by court and jury, and, after hearing it, the court instructed the jury to return a verdict for defendant. The instruction to the jury was as follows:

"Because the court is of the opinion that the undisputed evidence in this case shows that the injury received by plaintiff, and which is complained of in this case, was received by him while acting outside of the course of his employment with the Eagle Pass Lumber Company, he therefore fails as a matter of law to establish any case against the defendant. You are therefore directed to return your verdict in favor of the defendant and against the plaintiff."

Previous to filing this suit, the Industrial Accident Board had made the following award:

"J. B. Boatright, Employee, v. Georgia Casualty Co., Insurer; Eagle Pass Lumber Co., Employer. I-19802.

"On this 22d day of May, 1924, after due notice to all parties at interest, came on for consideration by the Industrial Accident Board, claim for compensation made and asserted herein by J. B. Boatright aganist the Georgia Casualty Company; and, it appearing that the question involved herein has not been settled by agreement of the parties, as provided by law, the board finds as follows: That on December 24, 1922, the Eagle Pass Lumber Company was a subscriber to the Employer's Liability Act (Rev. St. 1925, art. 8306 et seq.). and on that date carried a policy of insurance with the Georgia Casualty Company; that the said J. B. Boatright was the general employee of the Eagle Pass Lumber Company at Del Rio, Tex., on the date and occasion he suffered the injury of which he complains, but at the identical moment, when the injury was suffered, he was not engaged in the course of his employment as the employee of the said Eagle Pass Lumber Company, and was engaged wholly and absolutely outside of any connection or association with the business of the said Eagle Pass Lumber Company when the injury was actually sustained, and therefore his said claim for compensation must be and the same is hereby denied and refused, and the said Georgia Casualty Company must be and is hereby accorded full acquittance and discharge from liability on account of said claim, and it is so ordered, adjudged, and decreed by the board."

The facts show that when injured plaintiff was not engaged in work for the Eagle Pass Lumber Company, but was engaged...