Liberty Mut. Ins. Co. v. Nelson

• Decision Date: 23 February 1944
• Docket Number: No. 8194.,8194.
• Citation: 178 S.W.2d 514
• Parties: LIBERTY MUT. INS. CO. v. NELSON.
• Court: Texas Supreme Court

178 S.W.2d 514

LIBERTY MUT. INS. CO. v.NELSON.

No. 8194.

Supreme Court of Texas.

February 23, 1944.

Rehearing Denied March 29, 1944.

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

Suit by Hanna Bronstad Nelson against Liberty Mutual Insurance Company to set aside an award of the Industrial Accident Board denying the claim of plaintiff as surviving widow of employee. Judgment for plaintiff was affirmed by the Court of Civil Appeals, 174 S.W.2d 103, and defendant brings error.

Affirmed.

Kemper, Hicks & Cramer, of Houston, for plaintiff in error.

Baker, Botts, Andrews & Wharton, Albert P. Jones, Fred V. Hughes, and Denman Moody, all of Houston, for defendant in error.

CRITZ, Justice.

This is a workmen's compensation suit.Alfred G. Nelson, now deceased, was the employee; Peterson Brothers, a partnership, were the employers; and Liberty Mutual Insurance Company was the compensation insurance carrier.Alfred G. Nelson received injuries on October 16, 1940, which resulted in his death shortly thereafter.Mrs. Nelson, his surviving widow, made claim for compensation before the Industrial Accident Board.The claim was rejected by the Board on a finding that Mr. Nelson was not acting in the course of his employment at the time he received his fatal injuries.Mrs. Nelson then filed this suit in the District Court of Harris County against the Insurance Company.Trial in the district court, with the aid of a jury, resulted in a verdict and judgment for Mrs. Nelson for $6,659.59.This judgment was affirmed by the Galveston Court of Civil Appeals.174 S.W.2d 103.The Insurance Company brings error.

In response to a proper issue submitted by the trial court, the jury found that Mr. Nelson sustained the injuries which resulted in his death while acting in the course of his employment as an employee of Peterson Brothers.Based on this finding, and a further finding in favor of a lump sum settlement, the trial court entered the judgment above indicated.

The Insurance Company contended in the two lower courts, and here contends, that there is no evidence in this record which will support a fact finding that Mr. Nelson was acting in the course of his employment at the time he received his fatal injuries on October 16, 1940.

We have read, and carefully considered, the entire statement of facts bearing on the question above indicated, and in our opinion such statement justifies the following fact conclusions: That Alfred G. Nelson died as the result of injuries received by him in an automobile collision between the car which he owned, in which he was riding and which he was operating, and another car, driven and operated by a person not connected with this suit; that at the time of such accident, Mr. Nelson was an employee of Peterson Brothers; that Peterson Brothers were engaged in the business of steel construction; that Mr. Nelson was employed by Peterson Brothers as a steel painter, and had been so employed for a number of years; that Mr. Nelson only received pay measured by the hour when he was actually at work on the job where he was working as a painter; that Mr. Nelson was painter foreman for his employers, and when other painters were employed he had control and supervision over them; that when Mr. Nelson needed help he usually notified his employers, and they either procured same or authorized him to do so; that when Mr. Nelson needed brushes or other supplies he usually notified his employers, and they furnished the same; that at times when Mr. Nelson needed help or supplies he procured the same himself, without consulting his employers; that such procedure was not demanded of Mr. Nelson by his employers, but it was satisfactory with them, and had been acquiesced in many times during Mr. Nelson's years of employment; that in hiring help and in purchasing supplies Mr. Nelson usually used his own car, at his own expense, and on his own time; that such procedure was not demanded of Mr. Nelson by his employers, but was known to them, and they did not object thereto; that when Mr. Nelson purchased supplies he did so at the Pittsburgh Plate Glass Company, in Houston, Texas, and had such purchases charged to his employers' account; that such procedure was satisfactory with Mr. Nelson's employers, and they always paid for the supplies he purchased; that on the occasion of his injuries, which resulted in his death, Mr. Nelson was on a trip from Texas City, Texas, where he was working as a steel painter for his employers, to Houston, Texas, some 40 or 50 miles distant, to purchase paint and paint brushes from the Pittsburgh Plate Glass Company in Houston, Texas; that such supplies were to be purchased for Peterson Brothers and charged to their account; that such supplies were proper and necessary for the prosecution of the work Mr. Nelson was doing for his employers at Texas City; that such work could not proceed without such supplies; that Mr. Nelson could have procured such paint and brushes by notifying his employers, but it was satisfactory with them for him to go and get them;...