Smith v. Traders & General Ins. Co.

• Decision Date: 15 May 1953
• Docket Number: No. 3018,3018
• Citation: 258 S.W.2d 436
• Parties: SMITH et al. v. TRADERS & GENERAL INS. CO.
• Court: Texas Court of Appeals

Page 436

258 S.W.2d 436

SMITH et al. v. TRADERS & GENERAL INS. CO.

No. 3018.

Court of Civil Appeals of Texas, Eastland.

May 15, 1953.

Rehearing Denied June 5, 1953.

Carter, Gallagher, Roberts & Jones, Dallas, for appellants.

Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellee.

LONG, Justice.

Mrs. Vernice Smith, the widow of Emmett Thorne Smith, individually and as next friend for David Thorne Smith, the minor son of deceased, Emmett Thorne Smith, brought this suit against Traders & General Insurance Company for death benefits under the Workmen's Compensation Act. A jury was waived and judgment was rendered in favor of the insurance company. Plaintiffs have appealed.

The case was tried solely upon an agreed stipulation of facts which stipulations, in part, are as follows:

'That prior to the 6th day of July, 1951, N. H. Williams, one of the owners of the Winkler County News, had purchased all of the equipment of a small newspaper owned by Harley Hightower of Dallas, Texas, the printing equipment being located in Dallas, Texas. That N. H. Williams was desirous of coming to Dallas, Texas, for the purpose of inspecting such printing equipment purchased to determine what part of the equipment he could use in his own newspaper plant and to determine what part of such equipment was to be sold to others. In this connection it was his desire to have his employee, Emmett Thorne Smith, accompany him on the trip inasmuch as Emmett Thorne Smith was his composing room superintendent and would be of material assistance in determining what part of the equipment could be used and what part could be sold.

'That on July 6, 1951, N. H. Williams instructed Emmett Thorne Smith to accompany him to Dallas for the purpose of inspecting such equipment, and that they left their homes and place of business on the morning of July 6th and drove to Dallas in N. H. Williams' automobile. That N. H. Williams had agreed to pay and was to pay all expenses incurred by Emmett Thorne Smith in such trip to Dallas, Texas. That N. H. Williams and Emmett Thorne Smith arrived in Dallas at approximately 7:00 P.M. on July 6, 1951, and registered at the Jefferson Hotel in Dallas, Texas, and were assigned to Room 717 on the seventh floor of said hotel. That after arrival in Dallas, N. H. Williams and Emmett Thorne Smith contacted Harley Hightower and made arrangements to meet him at 8:00 A.M. on July 7, 1951, for the purpose of looking over the purchased equipment. That N. H. Williams and Emmett Thorne Smith also scheduled a truck to be at the printing shop formerly owned by Harley Hightower at 12:00 noon on July 7th for the purpose of transporting the usable equipment back to Kermit for the Winkler County News.

'Following these arrangements, N. H. Williams asked Emmett Thorne Smith whether or not he would desire to take a drink of liquor, and Emmett Thorne Smith, the employee, readily agreed to such suggestion; whereupon, N. H. Williams produced a fifth of bourbon whiskey from his suitcase. Following this and for a period of approximately one hour, N. H. Williams and Emmett Thorne Smith drank from the bottle of liquor so produced by N. H. Williams, and during such time the two men drank approximimately twothirds of said bottle. That while said employer and employee were engaged in consuming the aforementioned whiskey, they began telephoning thiends of theirs in the printing trade in the city of Dallas for the purpose of seeking companions for the evening, and finally did contact and prevail upon one Cecil O. Hill to join them in their hotel room. Hill arrived at the hotel room at approximately 8:00 P.M. on July 6th.

'That prior to operating the Winkler County News, N. H. Williams had formerly worked for the A. H. Belo Corporation, publishers of the Dallas Morning News in Dallas, Texas. Cecil O. Hill had been a co-employee of N. H. Williams for some years prior to the occasion in question but had never met Emmett Thorne Smith previously. That shortly after 8:00 P.M. after having several more drinks, N. H. Williams and Emmett Thorne Smith accompanied Cecil O. Hill to the plant of the Dallas Morning News and inspected same, said newspaper plant being a recent construction...