Consolidated Underwriters v. Adams, 5472.

• Decision Date: 05 April 1940
• Docket Number: No. 5472.,5472.
• Citation: 140 S.W.2d 221
• Parties: CONSOLIDATED UNDERWRITERS v. ADAMS et al.
• Court: Texas Court of Appeals

140 S.W.2d 221

CONSOLIDATED UNDERWRITERS v. ADAMS et al.

No. 5472.

Court of Civil Appeals of Texas. Texarkana.

April 5, 1940.

Rehearing Denied May 2, 1940.

Appeal from District Court, Panola County; T. O. Davis, Judge.

Suit under the Workmen's Compensation Act by Doll Adams and another to set aside a ruling of the Industrial Accident Board in favor of Consolidated Underwriters. From a judgment granting relief, Consolidated Underwriters appeals.

Affirmed in part and dismissed in part.

C. A. Lord, of Beaumont, for appellant.

Jones & Jones, of Marshall, J. E. Smith, of Longview, and Sam T. Holt, of Carthage, for appellees.

HALL, Justice.

This is a compensation case arising from the death of J. B. Adams at the hands of a fellow-workman while employed by the Sabine Basket Factory. Appellees, Doll Adams and husband, Squirrel Adams, as mother and father of J. B. Adams, deceased, instituted this suit to set aside an adverse ruling of the Industrial Accident Board denying them compensation. Appellees alleged "that on or about the 17th day of November, 1936, J. B. Adams was in the employ of the Sabine Basket Factory of Carthage, Panola County, Texas, and as such employee was required to assist in various duties about the Sabine Basket Factory such as the manufacturing, handling, and loading of baskets in and about the premises of Sabine Basket Factory. * * *"

"That on or about the 17th day of November, A. D. 1936, J. B. Adams, while working within the scope of his employment for the Sabine Basket Factory of Carthage, Texas, and within the limits of Panola County, Texas, received a fatal knife wound at the hands of a co-employee, J. D. Connor, which wound resulted in the death of J. B. Adams within an hour after the infliction thereof. That the knife wound was inflicted during an altercation between Connor and Adams, which altercation was provoked by Connor and not by Adams and which altercation arose immediately out of the work which the co-employees were doing, and developed over a dispute as to the manner and means of performing their duties for the Sabine Basket Factory."

Appellant answered by general demurrer, general denial and specially that J. B. Adams was not fatally injured while engaged in the course of any employment with said factory, but was killed by one Leon Connor; that said injury to Adams was intentional and was inflicted because of reasons personal to him, and not directed against him as an employee of Sabine Basket Factory; that at the time he received his fatal injuries Adams "was aggressively engaged in a personal encounter with one Leon Connor and at said time he was willingly engaged in a fight with said Leon Connor * * * that he received said injuries while unlawfully, wilfully, intentionally and aggressively attempting to injure another person." Appellant further alleged that at the time J. B. Adams received his fatal injury "he was not engaged in any work having to do with or originating in the work, business, trade or profession of said Sabine Basket Factory." Nor was Adams engaged in the furtherance of the business of said basket factory. That the fatal injury to him was unrelated to the work he was engaged to perform for said basket factory and was not the result of an attempt on his part to prevent "interference with the performance of any duties he owed to said Sabine Factory."

Trial was to a jury on special issues. The verdict and judgment were for appellees, and appellant has appealed to this court.

Appellant's first proposition is: "Unaided by the conclusions of the pleader, the plaintiffs' petition was vulnerable to the general demurrer, in that the allegations thereof were wholly insufficient to show that J. B. Adams sustained his fatal injury within the course of his employment."

We think the pleadings of plaintiffs to which the general demurrer was directed alleged with sufficient clarity: (1) That J. B. Adams was employed by the basket factory at the time of his death; (2) that he was killed by a co-employee, Leon Connor; (3) that the altercation which resulted in Adams' death grew out of a dispute between him and Connor "as to the manner and means of performing their duties for the basket factory", and in the scope of Adams' employment with said factory; and (4) that the altercation resulting in Adams' death was provoked by Connor and not by Adams. These allegations, in our opinion, are sufficient to support the judgment rendered herein. But should we be mistaken in this conclusion, still we think the pleading was good as against a general demurrer for the reason that the cause of action stated therein, if defective in form, was amendable. As said in State Banking Board v. Pilcher, Tex.Civ.App., 256 S.W. 996, 1002, reversed by Supreme Court on other grounds, 270 S.W. 1004: "Certainly it cannot be contended with any degree of assurance that, if the trial court had sustained the general demurrer * * * appellee could not, and would not, have been accorded, under the rules of practice, the right to file an amended pleading so as to have removed the effect of sustaining said general demurrer." Erie Tel. & Tel. Co. v. Grimos, 82 Tex. 89, 17 S.W. 831; Paine v. Hart-Parr Co., Tex.Com.App., 228 S.W. 121; Northwestern Nat. Ins. Co. v. Woodward, 18 Tex.Civ.App. 496, 45 S.W. 185, writ refused.

Appellant's second proposition relates to the refusal by the trial court of its peremptory instruction. At the conclusion of appellees' testimony, without introducing any testimony of its own, appellant rested its case and made motion for peremptory instruction which was by the court overruled. Appellant contends that the evidence when viewed most favorably for appellees wholly fails to establish any cause of action against it. The participants in the fatal difficulty as well as all eye-witnesses thereto, were Negroes—common laborers—and their evidence reflected by this record is typical. Some of them saw Adams and Connor immediately before the fight, others did not notice them until after the fight began. None of the witnesses saw the beginning of the difficulty. The actual fight—boxing —was what first attracted the attention of the witnesses. The record shows that Adams and Connor were boys about 18 years of age, employed by the Sabine Basket Factory as common laborers and were actually engaged in the work of unloading baskets and basket tops from a truck into a railroad car immediately before the fight. After the truck had been unloaded the driver thereof requested Connor to crank his truck. The driver's testimony with respect to events immediately following this request is:

"I picks up the crank and gives it to Leon Connor to crank the truck. I told him to give me a crank. I handed the crank to him and he took it in his hand.

"Q. What did he say? A. Well, he say, `Well, I would give it to Levi * * *'

"Q. Who is Levi? A. J. B. (Adams). But he say `He's a little hot with me, he might hit me with the crank.' He did hand Levi the crank. I didn't hear him say anything else. Adams didn't say anything that I heard. After Leon handed the crank to J. B. or Levi, I looked around and the crank was lying on the ground and J. B. picks up a basket and slings it after Leon (Connor) and Leon gets after him with his knife. When Leon gets after J B. he runs and Leon runs behind him. I did not see Leon cut J. B."

Other witnesses saw the boys fighting (boxing) before Adams threw the basket at Connor. Practically all the witnesses agree that when Connor "drew his knife" Adams, the deceased, ran. Joseph Peterson, an eye-witness to the fatal stabbing, testified:

"Q. When they finished boxing what happened, or what caused them to stop boxing? A. Well, this Connor boy got mad and got his knife out at this boy and Adams broke and run and Connor ran after him. He didn't catch him until he stopped. I saw Adams when Leon caught him.

"Q. What did he (Connor) do? A. Well, this Adams boy stopped, stooped and picked up a stick, and this boy (Connor) ran by him and struck him. I saw him stick him with a knife. After Adams was stabbed he threw a stick at Connor and started back to where he was working. He fell before he got back."

The record shows also that Adams was somewhat larger than Connor and had been practicing to be a professional boxer.

It seems to us from all the facts and circumstances in this record that a reasonable deduction to be drawn therefrom is that the fatal fight grew out of the work of cranking the truck. That is, whether Adams or Connor should crank it. This was a part of the work Adams was employed to perform for his master. It was incident to the hauling of baskets and tops from the factory to the railroad car. It affirmatively appears from this record that Adams was a peaceable boy, and at the time of the fight he said no word until after he had been fatally stabbed by Connor. From the record it also appears that these boys were friendly up to the very time of the fight. We conclude that there is sufficient evidence in this record to support the jury's answers to special issues Nos. 1 and 2, that the fatal injury received by J. B. Adams originated in and had to do with the work he was employed to perform for the Sabine Basket Factory and that the fatal injury suffered by Adams was received at a time when he was engaged in or about the furtherance of the work he was employed to perform for said factory. Adams' death was the "result of a hazard reasonably inherent in or incident to the conduct of his work" as common laborer. Among Negro common laborers, quarrels and fights must be expected to result in some instances from the manner and method of performing the work assigned to them. In McClure v. Georgia Casualty Co., Tex.Com.App., 251 S.W. 800, 803, opinion approved by Supreme Court, the following statement from Pekin Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N.E. 530, is quoted with approval: "All concur in the rule that the accident, to be within the...