Texas Employers' Ins. Ass'n v. Gill

• Court: Texas Court of Appeals
• Writing for the Court: Boyce
• Citation: Texas Employers' Ins. Ass'n v. Gill, 252 S.W. 850 (Tex. App. 1923)
• Decision Date: 09 May 1923
• Docket Number: (No. 2138.)
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. GILL.

252 S.W. 850

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

(No. 2138.)

Court of Civil Appeals of Texas. Amarillo.

May 9, 1923.

Rehearing Denied June 6, 1923.

Appeal from District Court, Clay County; H. F. Weldon, Judge.

Proceeding under the Workmen's Compensation Act by J. H. Gill, for compensation for injury, opposed by Thomas M. Sessums, employer, and the Texas Employers' Insurance Association, insurer. The Industrial Accident Board denied an award, and on appeal judgment was rendered for claimant, and insurer appeals. Affirmed on condition of remittitur.

Lawther, Pope & Leachman, of Dallas, and Taylor, Allen, Muse & Taylor, of Henrietta, for appellant.

Weeks, Morrow & Francis, of Wichita Falls, for appellee.

BOYCE, J.

J. H. Giill, an employee of Thomas M. Sessums, a member of the Texas Employers' Insurance Association, brought this suit to recover compensation under the Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, art. 5246—1 et seq.), for injuries alleged to have been sustained in the course of his employment. This injury was the result of one Salisbury shooting the plaintiff under circumstances hereinafter detailed. The claim was denied by the Industrial Accident Board, and the claimant appealed to the district court of Clay county, where judgment was rendered awarding him the compensation claimed.

The principal question in the case is whether the evidence is sufficient to support a finding that injury was sustained by claimant in the course of his employment. The facts on which this question is to be answered are as follows:

Gill was employed by Sessums as a helper and cook in the work of drilling an oil well. Sessums boarded the men, furnished a shack on the premises, with beds, cooking utensils, etc., for their use. He also furnished the provisions, and it was part of Gill's duties to do the cooking. Gill also attended to ordering the provisions and bringing or having them brought out to the premises. It was the custom for the men to go to Wichita Falls Saturday evening after the day's work was over and return to the lease Sunday evening or night, spending the interim in rest and recreation. These trips were made in an automobile belonging to one of the employees. On these visits it was Gill's custom to get the provisions for the ensuing week, and bring them back as the party returned. Entry to the property on which the well was located was had by passing through the yard surrounding a, farmhouse located on the premises covered by the oil lease, the road passing through two gates at this yard. This farmhouse was occupied by one Salisbury, probably a tenant on or the owner of the land on which the well was being drilled. Sessums had (according to his testimony) an agreement with Salisbury that Salisbury should "watch the well and keep people out of there at all times, because we did not want any visitors at any time, and after the fellow across the way closed his gate that was the only ingress and egress." One of the witnesses testified that Sessums told him that "these men were on duty, and there had been some objection to them going through the place, and that he had arranged with the men who owned the place and told them these men must go through the place."

On the Saturday evening before Gill was shot he, with three other men, went into Wichita Falls in a car owned and driven by one of his coworkers. On Saturday night after arrival at Wichita Falls he placed an order for groceries which on this occasion were to be brought out by Sessums on Monday morning. On Sunday night the party met by arrangement at a restaurant preparatory to returning to the shack where they were to sleep that night. At this time Gill purchased some bread and milk to take back for use the next morning at breakfast. They left town about 12:00 o'clock, and after they had passed through one of the gates at Salisbury's house, and were about 50 yards from the house were without warning fired upon by Salisbury, the shot taking effect in Gill's back, and injuring him severely. Gill testified that as they were going to town Saturday evening they were accosted by Salisbury; that he (Gill) did not hear the conversation that ensued, but his companions reported to him that Salisbury was mad because of the conduct of some "wild women" who had been at the oil well and had insulted his wife. "The boys told me he was mad because of this treatment he claimed his wife had received at the hands of these women. I didn't hear him say anything about us coming through there. The boys told me he said he wanted us to give some signal when we came through; that he was not going to allow those women going down there and cutting up." In another part of his testimony he said: "I heard that Mr. Salisbury was mad at us, claiming we had stolen some of his chickens." He also said that he was personally friendly with Salisbury and the evidence is sufficient to show that Gill nor any of the men with him on this occasion had anything to do with the presence of the objectionable women at the oil well.

In one of the affidavits filed by Gill in support of his claim and introduced in evidence by the defendant, Gill makes this statement:

"I can give no reason on earth as to why he [Salisbury] shot at us, except he claims to have shot in the direction of the car for the purpose of stopping the car so he could see who was in the car. I am informed that he was employed by Sessums as a watchman on the lease."

This is about all the evidence in the record that throws any light on the controversy as to the liability of the insurance association. While it is not as satisfactory as it might be, we are of the opinion that it is sufficient to warrant a finding that Salisbury was at the time of the shooting acting in pursuance of his duty, recklessly, it may be, for the purpose of preventing the entry of trespassers on the premises.

The statutory definition of the term "injury sustained in the course of employment" expressly excludes "an injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment," and expressly includes "all other injuries [not expressly excluded] of every kind and character having to do with and originating in the work * * * of the employment, received by an employee while engaged in or about the furtherance of the affairs * * * of his employer, whether upon the employer's premises or elsewhere." Vernon's Ann. Civ. St. Supp. 1918, art. 5246 — 82. If we are correct as to the conclusion that may be drawn from the facts as above stated, then the injury sustained in this case does not come within the terms of the exclusion of the statute, just quoted, and we have only to determine whether it is within the inclusive provision.

Gill's right to use the road through Salisbury's yard was derived from his employment, and "any risk arising from such use was incident to the employment." If the injury had been the result of some permanent defect in this way of entry, it would not be doubted that the injury had to do with and originated in the work. Lumberman's Reciprocal Association v. Behnken (Tex. Sup.) 246 S. W. 74, citing Honnold, vol. 1, § 122, and other authorities which fully sustain the proposition submitted. If there was a risk incident to the use of the entry, not caused by its condition, but the result of other...