Texas Employers' Ins. Ass'n v. Moyers, 4467.

• Decision Date: 27 February 1934
• Docket Number: No. 4467.,4467.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. MOYERS et al.
• Court: Texas Court of Appeals

Page 777

69 S.W.2d 777

TEXAS EMPLOYERS' INS. ASS'N v. MOYERS et al.

No. 4467.

Court of Civil Appeals of Texas. Texarkana.

February 27, 1934.

Rehearing Denied March 15, 1934.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Suit by Mrs. C. B. Moyers, for herself and as next friend of her two minor children, against Texas Employers' Insurance Association, to set aside an award of the Industrial Accident Board and for compensation for the death of her husband, J. B. Moyers, who was an employee of the Texas Refining Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Lawther, Cox & Cramer, of Dallas, B. M. McMahan, of Greenville, and Jas. P. Swift, of Dallas, for appellant.

Willis & West, of Dallas, and Germain Harris, of Greenville, for appellees.

SELLERS, Justice.

Mrs. C. B. Moyers brought this suit for herself and as next friend of her two minor children in the district court of Hunt county against Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board and for compensation for the death of her husband, J. B. Moyers, who was an employee of the Texas Refining Company at Greenville, Tex., and which company was a subscriber with the Texas Employers' Insurance Association under the terms of the Workmen's Compensation Law of this state (Vernon's Ann. Civ. St. art. 8306 et seq.). The injury alleged to have been sustained by J. B. Moyers, as described in plaintiffs' petition, is as follows:

"That on or about the 30th day of June, 1931, the said Jacob B. Moyers was employed by the said Texas Refining Company, and as such employee was engaged in the usual and customary duties for said Company, and was doing and performing the work, duties and labor that he was directed to do by his said foreman, and while so employed and while so engaged in said work for said Company in Hunt County, Texas, he sustained and received an accidental injury. That on said day and date, which was an extremely hot afternoon plaintiff was working between two buildings in the hot sun with the rays of the sun beating directly down upon him, and was working near the west side of the East Building, which was constructed of tin and iron, that is the sides and roof, that the rays of the sun beating on the side of said building reflected on the body of Jacob B. Moyers as he was at work on said date; that the reflection of said sun rays made it a hotter place for plaintiff than for any other person on that job, and hotter than the general public was accustomed to in that vicinity at said time, and subjected him to greater hazard from the heat of the sun than that to which the general public was ordinarily subjected; that at the time of said accidental injury and immediately prior thereto the said Jacob B. Moyers was doing hard manual labor and had been painting heavy iron doors which were laid flat upon what is commonly known as horses about two feet off the ground and was an inexperienced painter; that the paint and iron doors, with his body and face directly over same while using a paint brush, and the rays of the sun reflecting directly on to said paint and iron doors and reflecting back into his face and body made it a hotter place to him than to the general public in said vicinity on said date; by reason of all of the allegations herein the said Jacob B. Moyers, now deceased, suffered an accidental injury and what is known as a heat-stroke, from which stroke he died on the road to the hospital in Hunt County, Texas; that said injury resulted in his death. That he sustained the injury while working for the Texas Refining Company; and that he and said Company at the time of said injury was engaged in work, and deceased was in the course of his duties as directed by his said foreman at said time and occasion, and while in the usual and customary duties that he was ordered to perform, and while doing said work at said time and occasion in Hunt County, Texas; that said injury resulted in his death, which was a direct and proximate result of the injury sustained on said time and occasion.

"Plaintiffs would further allege and show to the court that the said Jacob B. Moyers, deceased, was in the course of his employment for the said Texas Refining Company in Hunt County, Texas, on the day and date of the above alleged injury; that the said injury of Jacob B. Moyers, deceased, originated and had to do with the business of the said Texas Refining Company, and was sustained by him while in and about the furtherance of the business of the said Texas Refining Company, and while doing the usual and customary duties of said employer."

The defendant's answer contained a general demurrer, certain special exceptions, general denial, and specially alleged as follows:

"Now comes defendant, for further and special answer, if same be necessary and without waiving its foregoing pleas, exceptions and demurrers but still insisting upon same and respectfully shows to the court that the alleged death of Jacob B. Moyers was due to an act of God and in the alternative defendant alleges that if the said death was not due to an act of God, that then and in that event the death was due to some other than damage or harm to the physical structure of his body and such diseases or infection as naturally result therefrom resulting from an accidental personal injury, and further in the alternative, defendant alleges that the hazards of the employment of said Jacob B. Moyers was not the direct or proximate cause of his alleged death."

The plaintiffs offered evidence to show that June 30, 1931, was a very hot day, the report of the government weatherman showing that the heat as recorded by him at about 2 o'clock on this day in Greenville, Tex., was 102 degrees. There is also evidence that this general degree of heat was exceeded by reason of the special situation and conditions at the very place where the deceased was doing the painting by twenty-five degrees. That the deceased worked at this place from some time in the morning until 3 or 3:30 in the afternoon. That on completing this work in the afternoon he went to a building some 150 yards away and continued to perform some duties for the refining company there. That this last place of work was in the building where the heat was about the same as that generally prevailing in that vicinity. That deceased only remained in this building about thirty or forty minutes when he returned to the main shop of the company to get some...