Indemnity Ins. Co. of North America v. Scott

• Decision Date: 12 October 1927
• Docket Number: (No. 831-4533.)
• Citation: 298 S.W. 414
• Parties: INDEMNITY INS. CO. OF NORTH AMERICA v. SCOTT et al.
• Court: Texas Supreme Court

298 S.W. 414

INDEMNITY INS. CO. OF NORTH AMERICA v. SCOTT et al.

(No. 831-4533.)

Commission of Appeals of Texas. Section A.

October 12, 1927.

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

Suit by the Indemnity Insurance Company of North America against Pinkie Scott and others, to set aside an award in their favor by the Industrial Accident Board, wherein defendants filed a cross-action seeking recovery for compensation, under the Workmen's Compensation Law, for the death of Robert Scott. Judgment of Court of Civil Appeals (278 S. W. 347), affirming a judgment for defendants on their cross-action, and plaintiff brings error. Affirmed.

Bryan & Maxwell, of Waco, for plaintiff in error.

F. M. Fitzpatrick, of Waco, for defendants in error.

NICKELS, J.

Robert Scott was killed by a fellow employee while in the service of Robinson Packing Company, a subscriber within the meaning of the Workmen's Compensation Law. Indemnity Insurance Company of North America was the insurer, and Pinkie Scott is the widow, and the other defendants in error are the infant children of Robert Scott. The Industrial Accident Board awarded compensation. The insurer brought this suit against the beneficiaries to set aside the award, and they, by cross-action, sued for compensation. The case was tried without a jury. Judgment was rendered against the insurer, and, upon its appeal, the judgment was affirmed by the Court of Civil Appeals. 278 S. W. 347. Writ of error was allowed upon assignments presenting lack of evidence to warrant the judgment.

The opinion of the Court of Civil Appeals includes a summary of the pleading and evidence which, with exceptions to be noted, appears to be accurate and complete, and, in avoidance of repetition, we refer to and adopt that statement of the case with modifications indicated.

The general contention, as presented, has two aspects: (a) The injury from which Scott died did not grow out of his employment, nor was it incidental thereto. (b) The injury was the result of his unlawful attempt to injure a third person, to wit, Fowler. If, by evidence of conclusive effect, either of those alleged facts is proved, the injury is noncompensable. Final subsection 4, art. 5246 — 82, Vernon's Tex. Civ. and Crim. Stat. 1918 Supp. (article 8309, R. S. 1925).

A compensable "injury sustained in the course of employment" is one which "had to do with and originated in the work, business, trade, or profession of the employer and which was received by the employee while engaged in or about the furtherance of the affairs or business of his employer." Article 8309, R. S. 1925; Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402.

Since Scott died immediately at the hands of Fowler, and since Fowler's act was purposed, compensability must rest upon narrow ground, for there can be no presumption that Fowler's employment included homicide, or that the master's business required Scott to provoke his own demise. As a matter of course, death of an employee at the hands of another, slaying for motives entirely personal and wholly exclusive of the employee status, is not a lawful basis for an award or judgment under this statute. Harris v. Texas Employers' Ins. Ass'n (Tex. Civ. App.) 257 S. W. 998; Stillwagon v. Callan, 183 App. Div. 141, 170 N. Y. S. 677; Id., 224 N. Y. 714, 121 N. E. 893; and various cases cited in Pekin Cooperage Co. v. Industrial Comm., 285 Ill. 31, 120 N. E. 530. And compensability for an injury caused by the employee's "willful intention and attempt to * * * unlawfully injure" another is expressly precluded in the words of the statute. Article 8309.

In pondering the immediate antecedents of Scott's death all reasonable minds, it is said, will conceive it as the result of something wholly disassociated from his employment. But that view, it seems to us, ignores the hypothesis of involuntary conduct resultant of forces set in movement by the course of business in respect to Scott and sequent peril, real or apparent, confronting Fowler. That hypothesis, we think has support in the evidence.

In favor of the judgment, and on the record, these things must be assumed: (a) The drain and its screened mouth made up a plant facility with, and in respect to, which all four of the employees (Scott, Fowler, Green, and Garrett) had to work. It became clogged so as to require immediate attention, and the liability of its becoming clogged and requiring attention inhered in the premises and operation thereof, as did the instruments of peril considered in Lumberman's Reciprocal Ass'n v. Behnken, supra, and in Kirby Lbr. Co. v. Scurlock, 112 Tex. 115, 246 S. W. 76. (b) Cleaning of the drain mouth was a part of Scott's task, and performance of that work required the posture of body assumed by him at the moment. (c) Throwing entrails and excreta to the floor at or near the drain mouth was the task whereunto Green and Garrett had been set. (d) Immediately contemporaneous performance of the work thus by the conditions respectively assigned to Green and Garrett and Scott would likely, if not inevitably, result in injury to Scott, to the extent, at least, that splashing excreta in his face would be injurious. (e) Garrett and Green knew or should have known of Scott's position; they ought to have foreseen that fifth would be his portion unless they paused; and their conduct (which by relation was the master's conduct) was negligent. (f) Emotion and potentiality of its stirring into uncontrollable passion inhered in Scott and Fowler as in other men.

To the matter, thus generally circumstanced, must be added the advance of Scott toward Fowler, accompanied with dire threats and the apparent ability of execution, immediately subsequent to the contact of the excreta with Scott's face, as testified to by Green and Garrett who were the only witnesses used on the subject. Each of them said that Scott did so advance and that when within 6 or 8 feet of Fowler the shot was fired which resulted in Scott's death. The testimony may be summarized thus with the idiom used by Green:

"Scott got angry and commenced cursing and said he was going to clean up that there packing house, and so Fowler, he was washing down the floor at the time and never paid no attention to him, and when he discovered anything and looked around, why Scott was making it to him with his knife, and of course then Fowler shot him. * * * I said that when Lew looked up and discovered Scott, he told him there was no use of that, but Scott he just kept...