Commercial Ins. Co. v. Austin

• Decision Date: 19 May 1939
• Docket Number: No. 3461.,3461.
• Citation: 128 S.W.2d 836
• Parties: COMMERCIAL STANDARD INS. CO. v. AUSTIN et al.
• Court: Texas Court of Appeals

128 S.W.2d 836

COMMERCIAL STANDARD INS. CO. v.AUSTIN et al.

No. 3461.

Court of Civil Appeals of Texas. Beaumont.

May 19, 1939.

Rehearing Denied May 31, 1939.

Appeal from Special District Court, Polk County; J. R. Anderson, Judge.

Suit under the Workmen's Compensation Act by the Commercial Standard Insurance Company to set aside an award of the Industrial Accident Board in favor of Barbara (alias Bobbie) Austin and Arthur Austin, Jr.From a judgment denying relief, the plaintiff appeals.

Judgment affirmed.

Manry & Cochran, of Livingston, and Sewell, Taylor, Morris & Garwood, of Houston, for appellant.

V. A. Collins, of Livingston, for appellees.

WALKER, Chief Justice.

This is a Workmen's Compensation case, prosecuted by appellant, Commercial Standard Insurance Company, the compensation insurance carrier, from an adverse award of the Industrial Accident Board in favor of appellees, Barbara Austin and Arthur Austin, Jr., the alleged beneficiaries.Arthur Austin, who was killed on the 6th day of April, 1937, by Slim Parker, was the employee, the husband of Barbara Austin and the father of Arthur Austin, Jr. Long Leaf Lumber Company was the employer.On the verdict of the jury, judgment was for claimants, to be paid in a lump sum.The appeal, duly prosecuted by appellant from the judgment of the lower court, presents the following points:

Appellant contends that it was entitled to an instructed verdict on the ground that Arthur Austin was not killed in the course of his employment.The point is that Arthur Austin's death "did not result from any risk or hazard incidental to his employment, but solely from causes set in motion by his own deliberate misconduct in initiating trouble with `Slim' Parker, for personal reasons, by ramming his boat into that occupied by `Slim' Parker, and by making a felonious assault upon Parker"; and further that "Slim Parker intended to injure Arthur Austin because of reasons personal to him and not directed against him as an employee or because of his employment."

The evidence raised the issue of injury "in the course of employment", and denies appellant's further contention that the finding of the jury on this issue was without support in the evidence and against the overwhelming weight and preponderance of the evidence.Arthur Austin, Slim Parker, and other employees, all negroes, were engaged in "raising up" saw logs from the bottom of the employer's pond.The logs were "fished" from the bottom of the pond and loaded on boats, and unloaded from the boats by the use of a chain.In addition to a daily wage, these men were paid extra compensation based upon the number of logs recovered by them from the bottom of the pond.The employees, for their own convenience and regulation, made the following rule, which was regularly observed by them in doing their work, as testified to by Dewey Williams: "Q.Youhave testified on direct examination that it was Arthur Austin's time to get in there; that was just your idea about it?A.No, Sir, that was their rules; the man that got loaded first had the first right to the chain, don't care if the other boat didn't lack but one log in being loaded; that was the rules of the pond.If I was loaded and was way back in the middle of the pond and you were right up to the chain and you wasn't loaded, and if I whistled, it was my time to the chain."

This witness testified that, on the morning of April 6, 1937, Slim Parker violated the rule by trying to push his boat ahead of Arthur and out of his turn, for the purpose of having his logs unloaded ahead of Arthur's logs.Arthur, in resentment of this act by Slim, threw his pole at him— the pole used by him in raising the logs from the bottom of the lake.About that time the foreman came up and was told what Slim had done, that it was Arthur's time at the chain and Slim had tried to take it away from him.When the foreman learned these facts, he discharged Slim.Slim left immediately but returned in about an hour with his gun and, without renewing the controversy with Arthur, shot and killed him.On the undisputed facts, Arthur was in the discharge of the duties of his employment when he was killed, and the evidence clearly raised the issue that Slim killed him as the result of a controversy that grew out of their employment.In fact, there was no controverting testimony on that issue.The evidence supported the verdict of the jury.Consolidated Underwriters v. Saxon, Tex.Civ. App., 250 S.W. 447;McClure v. Georgia Casualty Co., Tex.Com.App., 251 S.W. 800;Traders & General Ins. Co. v. Mills, Tex.Civ.App., 108 S.W.2d 219;United States Casualty Co. v. Hardie, Tex.Com. App., 299 S.W. 871;Lumbermen's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402;Travelers' Ins. Co. v. Culpepper, Tex.Civ.App., 82 S.W.2d 1054.

In defining to the jury the term, "injuries sustained in the course of employment,"the court used the language of the statute.There was no fact in this case requiring an extension of, or addition to, the statutory definition.

The evidence did not raise the issue that Arthur Austin's death was brought about as the result of his attempt to "unlawfully injure Slim Parker."Arthur was not making any assault on Slim, nor was he threatening to injure him at the time he was killed; at that time Slim had no reason to believe that his life was in danger from anything Arthur was doing, or threatening to do; and he was under no appearance of danger, viewed even from his...