Richardson v. Texas Employers' Ins. Ass'n

• Court: Texas Court of Appeals
• Writing for the Court: O'Quinn
• Citation: Richardson v. Texas Employers' Ins. Ass'n, 46 S.W.2d 439 (Tex. App. 1932)
• Decision Date: 19 February 1932
• Docket Number: No. 2190.,2190.
• Parties: RICHARDSON v. TEXAS EMPLOYERS' INS. ASS'N.

46 S.W.2d 439

RICHARDSON v. TEXAS EMPLOYERS' INS. ASS'N.

No. 2190.

Court of Civil Appeals of Texas. Beaumont.

February 19, 1932.

Rehearing Denied February 24, 1932.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by Ethel Richardson against the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board denying her compensation for the death of her husband, Albert Richardson, an employee of the Broussard-Warfield Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

Howell & Howell, of Beaumont, for appellant.

D. C. Marcus and A. L. Calhoun, both of Beaumont, for appellee.

O'QUINN, J.

We shall refer to appellant as plaintiff and appellee as defendant; that being their status in the court below.

Plaintiff filed suit in the district court of Jefferson county to set aside an award of the Industrial Accident Board denying her compensation for which she had made claim for the death of her husband, Albert Richardson. Judgment was against her, and she brings this appeal.

In her petition, plaintiff alleged that her deceased husband, Albert Richardson, about September 15, 1930, while in the course of his employment as an employee of the Broussard-Warfield Company, in Jefferson county, Tex., received an injury which resulted in his death, and that said injury originated in and arose out of his employment; that she duly gave proper notice of said injury and timely filed claim for compensation with the Industrial Accident Board of the state of Texas; that said board, on January 16, 1931, made its final order and decree; and that plaintiff duly gave notice of her unwillingness to abide by said decree, and within twenty days after giving said notice she filed this suit in the district court of Jefferson county to set aside said award. She further alleged that at the time her deceased husband received his injury, his said employer, Broussard-Warfield Company, was a subscriber under the Employers' Liability Act of Texas (Vernon's Ann. Civ. St. art. 8306 et seq.) and that defendant, Texas Employers' Insurance Association, carried such insurance. She further alleged that her deceased husband received his injury by being accidentally struck with a piece of iron by one Dave Williams, a fellow workman, and that the transaction in which her husband was injured was the outgrowth of an incident occurring in the employment previously, and was brought about by the peculiar working conditions created by said employer, and that deceased took no part in the jesting or horseplay, and was at the usual place of work preparing to commence the day's labor when he sustained his injury. She alleged that deceased's wages were $4 per day, and that said sum was the usual and customary wages for employees in the same or similar work for said Broussard-Warfield Company, for and during the year immediately preceding the said fatal injury. She alleged that she was entitled to compensation in a lump sum, prayed that the award of the Industrial Accident Board be set aside, and that she have judgment for compensation at the rate of $13.85 per week for a period of 360 weeks, payable in a lump sum discounted at 6 per cent., and for costs.

Defendant answered by general demurrer, special exceptions, general denial, and specially that the injury to deceased was not received in the course of his employment, because said injuries were caused (a) by the act of a third person intending to injure deceased because of reasons personal to him and not directed against him as an employee or because of his employment; (b) in the alternative, that such injuries were received as the result and outgrowth of horseplay between deceased and one Dave Williams, in which deceased was the aggressor; and (c) in the alternative, that the injury to deceased was caused by his willful intention and attempt to unlawfully injure another person, to wit, Dave Williams.

At the close of plaintiff's evidence, defendant moved for an instructed verdict, which was granted, and judgment entered in favor of defendant, and that plaintiff take nothing by her suit. Motion for a new trial was overruled, and plaintiff has appealed.

Plaintiff presents several assignments of error, but we shall discuss only the fifth. It reads: "There being testimony to the effect that the incident in which deceased was injured had its inception in horse-play and that Williams was the instigator thereof and the aggressor throughout the entire transaction, and that the deceased, if any part he took in same, was an unwilling participant and acted only to ward off a friendly attack, then the trial court was in error in failing and refusing to hold that the deceased's injury was sustained in and arose out of his employment."

The record discloses: That the Broussard-Warfield Company was engaged in paving streets under a contract with the city of Beaumont, and had various negro employees, thirty-five or forty, including Albert Richardson, deceased, and that the men were allowed from fifteen to thirty minutes at the noon hour for lunch. That the men, or at least the most of them, carried their lunch with them and ate at the point of work. This was not required of them by their employer. The day before the injury occurred, one of the lunches disappeared—was stolen—and one of the men accused deceased of stealing the lunch. The company had a truck that it sent out to pick up workers and carry them to the place of work on mornings. Deceased usually went on this truck, but on this morning he did not do so, but was at the place of work when the truck arrived. A negro by the name of Dave Williams was working in this crew of men on the same job. On the morning of the injury he was on the truck going to work. When the truck got near the place of work, Dave Williams said to another worker, Ben Taylor, "Yonder is Sam (referring to deceased); call him `Lunch Sam.'" Taylor refused. Williams then said to David Aikins, another member of the crew, and who was nicknamed "Black Spot," "Well, Black Spot will call him that," to which "Black Spot" (Aikins) replied, "No, I won't; you got a mouth; if you want him called anything you call him." When Williams got down off of the truck he walked around and said, "Hello, Lunch Sam," talking to deceased. Deceased said nothing, and Williams repeated, "Hello, Lunch Sam." Then deceased said, "I done told you to leave that mess alone; you are going to keep on until somebody gets hurt about that mess." Deceased then walked to the truck and picked up a...