Consolidated Underwriters v. Saxon

• Court: Texas Supreme Court
• Writing for the Court: Hamilton
• Citation: Consolidated Underwriters v. Saxon, 265 S.W. 143 (Tex. 1924)
• Decision Date: 15 October 1924
• Docket Number: (No. 459-3984.)
• Parties: CONSOLIDATED UNDERWRITERS v. SAXON et al.

265 S.W. 143

CONSOLIDATED UNDERWRITERS v. SAXON et al.

(No. 459-3984.)

Commission of Appeals of Texas, Section B.

October 15, 1924.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by Consolidated Underwriters against Mrs. Ada Saxon and others to set aside an award of the Industrial Accident Board. From a judgment of the Court of Civil Appeals (250 S. W. 447), modifying and affirming the award for defendants, plaintiff brings error. Reversed and rendered.

C. A. Lord, of Beaumont, for plaintiff in error.

Feagin, German & Feagin, of Livingston, for defendants in error.

HAMILTON, J.

This was a suit to set aside an award by the Industrial Accident Board of compensation to Mrs. Ada Saxon, Etha Perkins, her married dependent daughter, Floyd Saxon, Norman Saxon, Lois Saxon, and William Saxon, her minor children, for the death of W. L. Saxon, husband of Ada and father of the other defendants in error.

On April 4, 1921, W. L. Saxon was an employee of the Saner-Ragley Lumber Company at Carmona, Polk county, Tex., and, as such employee, was protected by an insurance policy issued by plaintiff in error. On that date he received wounds at the hands of Abe Johnson, another employee of the Saner-Ragley Lumber Company, from the effects of which he died.

Defendants in error were awarded compensation by the Industrial Accident Board in the sum of $15 per week for a period of 360 weeks, beginning on April 4, 1921, distributing one half to Mrs. Saxon and one half equally among the children. The plaintiff in error refused to pay the award and brought this suit to set it aside. Defendants filed a cross-action, praying for a lump sum settlement.

The trial court rendered judgment setting aside the award of the Industrial Accident Board, and decreeing that the defendants in error recover from the Consolidated Underwriters the sum of $5,400, together with interest thereon from the 4th day of April, 1921, and all costs of suit. There are other provisions of the judgment not important here. Plaintiff in error appealed. The Court of Civil Appeals modified the trial court's judgment. It discounted the $5,400 at the rate of 5 per cent., deriving a present value of $4,636.875. It then allowed interest at 6 per cent. on that amount from April 8, 1921, the date of the death of deceased, to February 8, 1923, the date of the court's judgment, during which time no payments had been made by the plaintiff in error. The interest allowed was $511, which the court added to the lump sum compensation, making a total of $5,148.875, for which it rendered judgment, with interest thereon from the date of that judgment. 250 S. W. 447. Consolidated Underwriters sought and obtained writ of error.

It contends that Saxon did not receive the injuries, from which he died, "in the course of his employment, within the meaning of the Texas Compensation Law, and that therefore it is not liable." Both the trial court and the Court of Civil Appeals found that Saxon sustained the injuries from which he died in the course of his employment, and we think the finding is amply sustained by the evidence.

The testimony reveals that the Saner-Ragley Lumber Company owned a sawmill and also a railroad four to seven miles long used in connection with the sawmill. Mr. R. M. Eagle was "general manager of the entire plant," including both the sawmill and the railroad.

Saxon was superintendent of the sawmill. Abe Johnson, a negro, was temporary section foreman of the railroad. Saxon was repairing the furnace at the sawmill on the day that he received the injuries. The mill was not in operation that day. He needed some shovels for use in this work. There were two shovels in the toolhouse of the railroad department. Mr. Eagle, the general manager, testified:

"I then held the position of superintendent of the Saner-Ragley Lumber Company, and as superintendent of that company my duties are general manager of the entire plant. * * * Mr. Saxon was cut by Abe Johnson shortly after 7 o'clock on Monday morning, April 4, 1921. At the time he was under the sawmill on the ground floor of the sawmill. As to what his duties were at the time, and as to what he was engaged in at that time—he was engaged in mill repairing; the sawmill was closed down. At that time he was at and about his usual place of work, and at that time he was engaged in the usual and customary duties of his position as foreman of the mill. * * * This attack that was made on Mr. Saxon by Johnson was under the sawmill, and that was at the place Mr. Saxon had usually worked, and where he had authority and jurisdiction. * * * This Abe Johnson, foreman railroad gang, kept the tools in a small—what I would call a section house or toolhouse about, probably, 1,200 feet from the mill in a west direction on the railroad track. * * * These shovels in question were kept at that place. * * * That toolhouse is situated on the railroad right of way of the company, along the track; there is really no right of way; it is all owned by the company; it is on the track. * * * Abe Johnson, the foreman of the railroad division, would go to work from 6:30 o'clock to 7 o'clock; that is when they usually start. The mill was not in operation that day; it was shut down for repairs. This furnace work and brick work and mortar work in which the shovels were used by Saxon was work done in repairing the furnaces while the mill was shut down. * * * The mill foreman was Mr. Saxon; called him superintendent; in that division he was superintendent; that is, of the manufacturing division, making of the lumber at the mill, and in making repairs at the mill, and doing things incident to the manufacturing of lumber. * * * It was the business of Johnson to look after the tools and supply his men with shovels. * * * Mr. Saxon knew whose shovels they were, and where they came from, and all about it. * * * I sent a man off to get those shovels. I gave him these instructions to go and get those shovels, and take them to Mr. Saxon. I told him to get them from the toolhouse out of the railroad department. I told him he probably would have to get them from Mr. Byrnes, but I learned afterwards he did not. He knew the toolhouse was unlocked and he went up there and brought them down. * * * Mr. Saxon had these two shovels under my directions and at my instructions, and doing the work that I had required him to do as superintendent of the mill."

Charlie Stanford testified:

"On the 4th day of April, 1921, I was down there at Ragley. I was somewhere about the sawmill. I will just tell the court where I was. Well, I went down to the planer and they were not going to run that day, and I went on to the mill and asked Mr. Saxon could I drive a cleanup wagon that morning. He said stay around here two or three minutes, and he would see whether that other fellow came out or not, and we went on around behind the engine room behind him, and about that time—well, old Abe Johnson, a negro, walked up, and Mr. Saxon said, `What you have, Preacher?' He said, `I want to get them three shovels that you got.' And Mr. Saxon said, `We need them to-day;' says, `We are making up this cement stuff here,' and old Abe said, `Well, I have got to have them all too.' They turned and went around under the mill, and that is all I heard them say then. And then old Abe said, `Yip! Yip!' and I turned around there, and he had his knife in his hand something like this way (witness indicating), walking up to Mr. Saxon, and Mr. Saxon was walking off from him. That is about all I seen."

Mr. Eagle testified:

"About 7:10 a. m., on Monday morning, April 4, 1921, I was walking from the office to the mill, when within about approximately 30 feet I heard loud voices underneath the mill, and on approaching a little closer I saw Mr. Saxon and this negro. Mr. Saxon had recognized me about the same time. He said to the negro: `Here comes the boss, or superintendent;' I do not recall which word he used, `Here comes the boss, or the superintendent; he can settle this.'"

It is provided in the statute (General Laws, 35th Legislature, Regular Session, p. 292 [Vernon's Ann. Civ. St. Supp. art. 5246— 82]) that:

"The term `injury sustained in the course of employment' * * * shall not include: * * *

"(2) An injury caused by an act of a third person intended to injure the employé because of reasons personal to him and not directed against him as an employé, or because of his employment."

It is plaintiff in error's contention that the injuries from which Saxon died "were caused by an act of Johnson intended to injure Saxon, because of reasons personal to him and not directed against him as an employee, or because of his employment."

Because of Saxon's employment, Mr. Eagle had the shovels carried to him. Because Saxon had the shovels in use in the company's business, Johnson came to the mill. Because Saxon needed the shovels in the company's business, he did not deliver them to Johnson. The evidence leads to the inference that the failure of Saxon to deliver the shovels caused the injuries to be inflicted. The failure to deliver them was not for reasons personal, but for a reason in furtherance of the employer's business. But for the employer's business, it may be inferred from the evidence Saxon would have delivered the shovels to Johnson and no difficulty would have arisen and no injuries would have been inflicted. These conclusions are reasonable inferences from the evidence. No reasons personal to Saxon—no reasons separable from his adherence to the interests of his employer —are shown by the evidence to have caused Johnson to inflict the injuries. No motives, other than Saxon's pursuance of his employer's business, are assignable, under the evidence, for Johnson's acts. It is not contended that Saxon's injuries are any other of the injuries which section 1 of part 4 of the Workmen's Compensation Law, supra, provides "the term `injury sustained in the course of employment'" shall...