Consolidated Underwriters v. Saxon

• Decision Date: 01 March 1923
• Docket Number: (No. 904.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 250 S.W. 447
• Parties: CONSOLIDATED UNDERWRITERS v. SAXON et al.
• Court: Texas Court of Appeals

250 S.W. 447

CONSOLIDATED UNDERWRITERS v. SAXON et al.

(No. 904.)^*

Court of Civil Appeals of Texas. Beaumont.

March 1, 1923.

Rehearing Denied March 28, 1923.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Suit by the Consolidated Underwriters against Ada Saxon and others to set aside an award of the Industrial Accident Board. Judgment for defendants, and plaintiff appeals. Judgment affirmed as modified.

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

Feagin, German & Feagin and F. Campbell, all of Livingston, for appellees.

O'QUINN, J.

This suit was brought by appellant against appellees to set aside an award of the Industrial Accident Board allowing appellees compensation as claimed by them in the sum of $15 per week for 360 weeks, beginning April 4, 1921, on account of the death of W. L. Saxon, husband and father of appellees, who was an employé of the Saner-Ragley Lumber Company at the time of his death.

Appellees answered and filed cross-action against appellant, asserting their right to compensation, and alleging that the Saner-Ragley Lumber Company, a corporation operating a sawmill manufacturing lumber, was a subscriber within the terms of the Compensation Law, carrying a policy of insurance with appellant and that W. L. Saxon, deceased, was an employé of said Saner-Ragley Lumber Company, and that on April 4, 1921, while engaged in his work as foreman of the sawmill of said company, he was assaulted by Abe Johnson, another employé of said Saner-Ragley Lumber Company, and by said Johnson cut and stabbed, from the effects of which he died on April 8, 1921, and prayed for compensation in a lump sum.

Appellant pleaded general denial in answer to appellees' cross-action.

The case was tried before the court without a jury, and the award made by the Industrial Accident Board was set aside, and judgment rendered for appellees on their cross-action for the full amount of compensation claimed, covering 360 weeks at $15 per week, and decreed that the whole amount, $5,400, should be paid in a lump sum, without discount, with interest at the rate of 6 per cent. per annum on said sum from April 4, 1921, the date of the injury.

At the request of appellant, the court filed his findings of fact and conclusions of law, which are:

"Findings of Fact.

"(1) I find that on April 4, 1921, the Saner-Ragley Lumber Company was engaged in the operation of a sawmill plant at Carmona, Polk county, Tex., and was a subscriber to the Employers' Liability Act of the state of Texas; that on said date it had in full force and effect a policy of insurance with the Consolidated Underwriters, plaintiff herein, covering the employés of said Saner-Ragley Lumber Company; that on said 4th day of April, 1921, W. L. Saxon was an employé of said Saner-Ragley Lumber Company, and as such employé was covered by said policy of insurance.

"(2) That on the 4th day of April, 1921, the said W. L. Saxon was in the employment of said Saner-Ragley Lumber Company as foreman of its sawmill; that as such foreman he had authority over the men employed at said mill, and had general charge of all machinery and tools belonging to the Saner-Ragley Lumber Company and in use at and around said sawmill in connection with its business; that on said date R. M. Eagle was the general superintendent of said sawmill, and had general authority over and superior to that of W. L. Saxon; that on the morning of the 4th of April, 1921, shortly after 7 o'clock a. m., and after the said W. L. Saxon had gone on duty, he was at or near the boiler house connected with said sawmill; that at said time he was in charge of certain men who were preparing mortar and making repairs on the furnaces, the said Saxon directing said work; that in doing said work he had and was using two shovels belonging to the Saner-Ragley Lumber Company, which had been obtained on the day before from the tool house connected with the track department, having gotten same from said tool house under instructions from the superintendent, R. M. Eagle, and which were gotten by him for the purpose of doing the work at said sawmill which he was engaged in doing on the morning of April 4, 1921; that, while at said sawmill and engaged in the work aforesaid, one Abe Johnson, who was an employé of the Saner-Ragley Lumber Company, and who was temporarily in charge of a section crew working in the track department of said sawmill, came upon the sawmill premises where the said W. L. Saxon was engaged in his work, and stated that he wanted to get the two shovels that had been obtained the day before from the tool house; that the said W. L. Saxon declined to give said shovels to the said Abe Johnson, for the reason that he needed them in the work he was doing, and was required to use them in order to do the work he had been instructed to do by the superintendent, R. M. Eagle; that, when the said Abe Johnson first approached the said W. L. Saxon, he spoke to him in an angry manner with reference to said shovels; that immediately after said conversation the said W. L. Saxon and the said Abe Johnson walked under the mill shed, a distance of some 20 or 30 feet from where said work was being done, and immediately after getting under said mill shed the said Abe Johnson attacked the said W. L. Saxon with a knife, and before the said Saxon could escape, and while he was trying to defend himself against said attack, the said Johnson cut and stabbed the said Saxon in such a way and manner that he died from the effects of such wounds on the 8th day of April, 1921; that the said W. L. Saxon was in no way the aggressor, but that he acted wholly in his own defense.

"(3) I find that there was no reason of any kind personal to either the said W. L. Saxon or the said Abe Johnson by which said attack was brought on, but that the only reason the said Johnson assaulted and killed the said Saxon was because he was employed at the time as foreman of said sawmill, and because of his said employment he had charge of and was using said shovels, and in the exercise of his authority as foreman he retained the same and refused to deliver same to the said Johnson.

"(4) I find that at the time of the death of the said W. L. Saxon his average weekly wages were $35.94; that in due time claim for compensation on account of the death of the said W. L. Saxon was filed with the Industrial Accident Board by those entitled under the law to receive compensation for his death; that on the 18th day of August, 1921, the said Industrial Accident Board entered its judgment and order to the effect that the death of the said W. L. Saxon resulted from injuries sustained in the course of his employment, and awarded compensation in the sum of $15 per week for a total of 360 weeks; that said compensation was awarded in favor of Mrs. Ada Saxon, the surviving widow, and Mrs. Etha Perkins, Floyd Saxon, Norman Saxon, Lois Saxon, and William Saxon, as dependent children of said W. L. Saxon; that in due time notice was given and suit filed here to set aside the judgment and award of the Industrial Accident Board.

"(5) I find that Mrs. Ada Saxon is the surviving widow of W. L. Saxon, and that Mrs. Etha Perkins, Floyd Saxon, Norman Saxon, Lois Saxon, and William Saxon are the dependent children of said W. L. Saxon, and that Mrs. Paul Adams, the daughter of said Saxon, was not dependent upon him at the time of his death, and that no other parties other than those named above were dependent on him. I find that the said Mrs. Ada Saxon has no property of her own; that she is engaged in running a small boarding house at Carmona, Tex., and that her necessary expenses in running same amount to about $45 per week; that four of said children are minors, and only one of same is capable of earning anything to aid in the support of the family; that this is a case in which manifest injustice and hardship would result if the compensation was paid only in weekly installments; that the maximum compensation allowed under the law, to wit, the sum of $5,400, is a fair and reasonable compensation allowable under the circumstances of this case.

"Conclusion of Law.

"I conclude, as a matter of law, that W. L. Saxon was killed in the course of his employment as foreman of the sawmill of the Saner-Ragley Lumber Company; that his beneficiaries under the law are entitled to recover the maximum compensation allowed under the law, with interest thereon from April 4, 1921, and judgment has been rendered accordingly.

"[Signed] J. L. Manry, Judge Presiding."

Appellant's first two propositions challenge the court's findings of fact and conclusion of law that the deceased, W. L. Saxon, was killed in the course of his employment, and assert that the injuries of W. L. Saxon, causing his death, were not received in the course of his employment, within the terms of the Compensation Law, but that said injuries were the willful acts of a third person, intended to injure the said Saxon because of reasons personal to him.

This contention cannot be sustained. The undisputed facts show that R. M. Eagle was the general superintendent of the Saner-Ragley Lumber Company—general manager of the entire plant. Saxon was foreman at the sawmill, and as such had charge of all work pertaining to same. Johnson was the negro section foreman, employed in the railroad department of the company. At the time Saxon received his injuries the mill was shut down for repairs, and Saxon was engaged in having the repairs made. The repair work being done was on some brick furnaces in the boiler room, and being done under orders from the general superintendent, Eagle. Saxon asked Eagle for two shovels to be used in mixing mortar for said repair work, and Eagle had two shovels brought from the tool house of the section foreman. Eagle testified:

"I told him [Saxon] on Saturday to see if he could locate a couple of shovels, and on Sunday he sent me word he had been unable to locate— Well, when this negro [not Johnson] came...