Texas Emp. Ins. Ass'n v. Cecil, 3200

• Decision Date: 16 December 1955
• Docket Number: No. 3200,3200
• Citation: 285 S.W.2d 462
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Joe CECIL, et ux., et al., Appellees.
• Court: Texas Court of Appeals

Page 462

285 S.W.2d 462

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Joe CECIL, et ux., et al., Appellees.

No. 3200.

Court of Civil Appeals of Texas, Eastland.

Dec. 16, 1955.

Rehearing Denied Jan. 6, 1956.

McMahon, Springer, Smart & Walter, Abilene, for appellant.

Darrell Shelton, Brownwood, Sam Russell, Stephenville, for appellee.

COLLINGS, Justice.

This is a Workmen's Compensation case in which benefits are sought for the death of Harry Cecil, deceased, alleged to have been fatally injured on May 13, 1953, while in the employ of The Texas Brick Company. The trial was before the court without a jury. Judgment was rendered in the amount of $7,457.25 for Calvin Harry Cecil, the minor son, and Joe Cecil and Elizabeth Cecil, the father and mother of the deceased, against Texas Employers' Insurance Association, which brings this appeal.

The evidence shows that on May 13, 1953, Harry Cecil, deceased, and James Eoff, together with several other men, were employed by and working for The Texas Brick Company, a manufacturer of brick and tile. The manufacture of the tile or brick is completed by a machine known as a 'pug mill.' The machine, upon completion of the manufacturing process, delivers the brick or tile on a belt which is referred to as the 'off bearing line' and which conveys the tile and brick to small rail cars on which these products are loaded. The deceased, Harry Cecil and James Eoff, together with four other men, were working on this 'off bearing line' and it was their duty to pick up the brick or tile as it passed by their position on the 'off bearing line' and place it on the rail cars. These employees, according to the evidence, while doing this work, frequently engaged in pranking, such as greasing each other's tiles. This would cause the tiles to be slippery and difficult to handle. James Eoff was either the first or second man on the 'off bearing line' from the 'pug mill' and Harry Cecil was the last or sixth man working on the line. On the date of Harry Cecil's fatal injury, James Eoff had greased one of the tiles. When the tile reached Cecil he picked it up and found that it was greased. He then made the following statement: 'Whatever dirty s-o-b done that had better quit.' Thereupon, Eoff, who had greased the tile, left his position and went about fifteen or eighteen feet to the other end of the 'off bearing line' where Cecil was still working and struck him on the left jaw or ear. Cecil fell to the floor and became unconscious. He was carried to the hospital and later died from the injury sustained. The trial court made the following findings of fact:

'IV. The deceased, Harry Cecil, on May 13, 1953, sustained an accidental injury in the course of his employment and while engaged in the furtherance of his employer's business for the said Texas Brick Company which accidental injuries resulted in his death.

'V. I find that at the time that Harry Cecil, deceased, was accidentally injured, which injury caused his death, the said Harry Cecil was not engaged in horseplay at the time of or shortly before his injury.

'VI. I find that at the time that Harry Cecil, deceased, received his injuries, he was not then or immediately prior thereto willingly engaged in horseplay.

'VII. I find that at the time that Harry Cecil, deceased, received the injuries resulting in his death, he was engaged in the furtherance of his employer's business in removing tile from the belt and placing it on the wagon and that he was struck on the side of his head and face while he was so engaged, and that such assault caused his death.

VIII. I find that Harry Cecil, deceased, did not willingly engage in or provoke an assault by his fellow-employees, and such assault that caused the death of Harry Cecil was made and committed upon him with reference to the manner in which the work he was doing for his employer was being done.

'IX. I find that the injuries received by Harry Cecil, while in the course of his employment were made without warning to the said Harry Cecil while he was then in the act of taking tile from the off-bearing belt and placing it on the wagon, when he received the blow on the side of his face and head without warning and without justification or provocation.

'X. I find that the injuries that caused the death of Harry Cecil were sustained while he was engaged in and while performing his duties and in the course of his employment with The Texas Brick Company and that his injury was of such kind and character and happened under such circumstances as had to do with and originated in his employer's business.

'XI. I find that Harry Cecil did not grease any tile on the day of his injury, and that the witnesses who so testified were mistaken. I find, however, that there had been an occasional tile greasing in the past among the employees (except the Mexican) working as off-bearers, which was known by their bosses, and while the record shows such bosses did not approve of it, they did nothing about it, and fired nobody as a result of it; nor was James Eoff fired on account of his action, but was invited by his employer to return to work after the occurrence, and did return and worked for about two weeks and thereafter quit of his own accord.'

Appellant contends in numerous points that the court erred in finding that Harry Cecil, deceased, was not engaged in horseplay at and shortly before the time he received his fatal injury; that he was not at and immediately prior to the time of his injury willingly participating in horseplay, and that he did not grease any tile on the date of his injury. Appellant urges that there was no evidence, and that the evidence was insufficient to support such findings; that on the contrary, the evidence is undisputed and conclusive that Harry Cecil did willingly participate and engage in horseplay and did grease a tile on the day of his fatal injury, and that the altercation in which he was injured arose out of such horseplay, which was wholly unconnected with his employment with his employer, The Texas Brick Company.

After a careful examination of the evidence, considered in its most favorable light to the judgment, as we are bound to do, we have concluded that there is evidence and that the evidence is sufficient...