Southern Surety Co. v. Weaver

• Decision Date: 27 June 1925
• Docket Number: (No. 666-4177.)
• Citation: 273 S.W. 838
• Parties: SOUTHERN SURETY CO. et al. v. WEAVER et al.
• Court: Texas Supreme Court

273 S.W. 838

SOUTHERN SURETY CO. et al. v. WEAVER et al.

(No. 666-4177.)

Commission of Appeals of Texas, Section A.

June 27, 1925.

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

Combined actions by the Southern Surety Company against Gilbert Weaver and another, and by Andrew Weaver and wife against the Southern Surety Company and others, to set aside an award of the Industrial Accident Board for the death of E. E. Weaver, employee. Judgment awarding compensation was affirmed by the Court of Civil Appeals (260 S. W. 622), and the Surety Company and others bring error. Affirmed.

C. A. Lord and O. M. Lord, both of Beaumont, for plaintiffs in error Andrew Weaver and wife.

McGregor & Burr, of Houston, for other plaintiffs in error.

E. B. Pickett, Jr., of Liberty, for defendants in error.

CHAPMAN, J.

In August, 1922, C. C. Cannon was engaged in drilling for oil in Liberty county, and under the Employer's Liability Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91) carried insurance on his employees with the Southern Surety Company. On August 9, 1922, E. E. Weaver, an unmarried man, one of Cannon's employees, while acting in the scope of his employment, received injuries in a boiler explosion, from the effect of which he died in about 10 hours. At the time of the accident, Weaver's mother was not living, and his father had married again. In addition to his father, Weaver left surviving him two minor brothers, Clyde Weaver and Gilbert Weaver.

Upon a finding by the Industrial Accident Board, that the father of E. E. Weaver was not dependent on him, and that the two minor brothers were dependent, the compensation for the death of E. E. Weaver, under the provisions of the Employer's Liability Act, was awarded to the two minor brothers. The Southern Surety Company, and Andrew Weaver and his wife brought suits to have the award of the Industrial Accident Board set aside. The two suits were combined.

Andrew Weaver and Fanny Weaver, in their petition, alleged that E. E. Weaver, deceased, was in the employ of C. C. Cannon, a drilling contractor in the capacity of boiler fireman, and that while engaged in the scope of his employment, and while acting within the scope of his duties as a boiler fireman, he sustained serious burns, scalds, and injuries which resulted in his death on the same day that the injuries were received. Clyde Weaver and Gilbert Weaver in their answer alleged that the injuries which caused the death of E. E. Weaver were received by him while he was in the employ of C. C. Cannon, a drilling contractor, in the capacity of boiler fireman, and while engaged in the course of his employment as such employee.

Roy Weaver, brother of E. E. Weaver, testified that his brother, E. E. Weaver, an hour after the accident, and while in the doctor's office, and while suffering intense pain from being scalded all over, told him how the accident occurred, and Roy Weaver was permitted to testify as to what his brother told him at that time. The trial court found that the father and two minor brothers were dependent on the deceased for support, and awarded the compensation one-half to the father and one-half to the two minor brothers jointly.

The issues now before this court are: First, as to whether the allegations of the parties claiming compensation, as to how the deceased was injured, are good against a special exception that the pleadings do not set out the facts in the manner and way in which the said Weaver was alleged to have been injured, and as a result of which injuries he died with that legal certainty that would show that he received such injuries in the course of his employment, or as to enable plaintiff to prepare its defense and to meet defendant's proof. Second, as to whether the statement made by deceased to his brother under the conditions above named was res gestæ. Third, as to whether the court should have awarded the entire compensation to the father of the deceased or apportioned it in the manner that it did.

In article 5246 — 82, 1918 Supplement to Vernon's Texas Civil Statutes, after making certain provisions in which compensation for injuries will not be allowed, it is provided that the term "injuries" shall include all other injuries of every kind and character having to do with and originating in the work, business, trade, or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer's premises or elsewhere. We think that the pleadings above set out are not mere conclusions of the pleader as to how the injury was received, as claimed by plaintiff in error, Southern Surety Company, but that the pleadings are statements of facts, and are a sufficient statement of the cause of action under the provision of the statute mentioned for a basis for the admission of proof as to how the injuries were received. There is not the slightest intimation in the evidence that Weaver was not acting within the scope of his employment when the accident occurred. Those claiming compensation do not have to allege and prove that the deceased was injured through the negligence of his employer, and therefore the negligence cases cited by plaintiff in error do not apply to the facts of this case. The issue as to whether the statement, made by deceased to his brother, comes within the rule of res gestæ presents a difficult question, and one about which there is a difference of opinion in the authorities. In Pilkinton v. Gulf, C. & S. F. Ry. Co., 70 Tex. 226, 7 S. W. 805, our Supreme Court discusses this question as follows:

"As to what is res gestæ depends much upon the circumstances of each particular case. The doctrine is based on the presumption that declarations made at the time of the act, or transaction, or the event to which they relate, evoked by it, without premeditation, are part of the act, or transaction, or event. To be a part of the res gestæ, the declarations are not required to be precisely concurrent in point of time with the principal transaction, if they spring out of it, tend to explain it, are voluntary and spontaneous, and are made at a time so near as to preclude the idea of deliberate design. * * *

"The rule is very latitudinous, and its application must be left largely to the judicial discretion of the trial court. Where the circumstances of the case render it probable that a statement offered as res gestæ is the result of premeditation or deliberate design to effect a certain purpose, it should not be received."

In the City of Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519, the facts do not show just how long after the injury, a boy told his mother how the injury occurred, except that the conversation was on the same evening of the injury, and the court held that it was permissible for the mother to testify as to the statement made to her by her son, and in their opinion quoted with approval from the Supreme Court of Missouri in the case of Harriman et al. v. Stowe, 57 Mo. 97:

"`The accident and the declarations formed connecting circumstances, and in the ordinary affairs of life no one would doubt the truth of...