Employers' Indemnity Corporation v. Kirkpatrick

• Decision Date: 08 July 1919
• Docket Number: (No. 6085.)
• Citation: 214 S.W. 956
• Parties: EMPLOYERS' INDEMNITY CORPORATION v. KIRKPATRICK et al.
• Court: Texas Court of Appeals

214 S.W. 956

EMPLOYERS' INDEMNITY CORPORATION v. KIRKPATRICK et al.

(No. 6085.)

Court of Civil Appeals of Texas.

July 8, 1919.

Rehearing Denied October 15, 1919.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Suit by Mrs. Dora Kirkpatrick and others against the Employers' Indemnity Corporation. From judgment for plaintiffs, defendant appeals. Affirmed.

Pat M. Neff, of Waco, for appellant.

Albert C. Johnston, of Waco, for appellees.

KEY, C. J.

The nature and result of this suit was sufficiently indicated by the trial judge's findings of fact and conclusions of law, which are as follows:

"Findings of Fact.

"(1) The court finds that H. M. Kirkpatrick sustained injuries in the city of Waco, McLennan county, Tex., on the 16th day of November, 1917, resulting in his death.

"(2) The court finds that the said H. M. Kirkpatrick, at the time he received said injuries, was in the employ of M. Collins, proprietor of the Artesian Steam Laundry.

"(3) The court finds that the said M. Collins, proprietor of the Artesian Steam Laundry, was on the last date aforesaid a subscriber under the Workmen's Compensation Act (Acts 33d Leg. c. 179 [Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), and as such carried a valid contract of insurance against liability with the Employers' Indemnity Corporation, the plaintiff in this case.

"(4) That Dora Kirkpatrick was the wife of H. M. Kirkpatrick, deceased, and that Ruby Alice Kirkpatrick, age eight years, Wray Kirkpatrick, age seven years, and Judson Kirkpatrick, age five years, minors, are the children of H. M. Kirkpatrick, deceased, and as such are the surviving legal beneficiaries.

"(5) That Albert C. Johnston, an attorney at law, was employed by the surviving and legal beneficiaries of the said H. M. Kirkpatrick, deceased, to represent them in this cause, and that the said Albert C. Johnston did represent said beneficiaries in said suit and agreed to receive one-fourth of the recoveries herein as attorney's fee in lieu of a one-third assignment thereof.

"(6) The court further finds that the said H. M. Kirkpatrick, deceased, put his horse and laundry wagon in the Palace stables about 7 o'clock p. m. on the day last aforesaid, same being the place where the said Kirkpatrick was accustomed to keep said horse and laundry wagon overnight, and that while the said H. M. Kirkpatrick, deceased, was on his way home, and while performing his duties of employment, he was struck by an automobile about 8:30 o'clock p. m., at the corner of Ninth and Clay streets in the city of Waco, as aforesaid.

"(7) The court further finds that the said H. M. Kirkpatrick, deceased, was not under the influence of intoxicating liquors at the time he received the injuries resulting in his death.

"(8) The court further finds that manifest hardship and injustice would result to the legal beneficiaries of the said H. M. Kirkpatrick,...