Texas Indemnity Ins. Co. v. Dunlap

• Decision Date: 14 February 1934
• Docket Number: No. 2450.,2450.
• Citation: Texas Indemnity Ins. Co. v. Dunlap, 68 S.W.2d 664 (Tex. App. 1934)
• Parties: TEXAS INDEMNITY INS. CO. v. DUNLAP et al.
• Court: Texas Court of Appeals

68 S.W.2d 664

TEXAS INDEMNITY INS. CO. v. DUNLAP et al.

No. 2450.

Court of Civil Appeals of Texas. Beaumont.

February 14, 1934.

Rehearing Denied February 21, 1934.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by J. H. Dunlap and wife against the Texas Indemnity Insurance Company, insurance carrier, to recover compensation for the death of plaintiffs' son, Howard Dunlap, while employed by the Magnolia Petroleum Company. Judgment for plaintiffs, and the defendant insurance carrier appeals.

Reversed and rendered.

Lipscomb & Lipscomb, of Beaumont, for appellant.

Samuel Belden and E. C. Gaines, both of Austin, for appellees.

COMBS, Justice.

This is a compensation case; Magnolia Petroleum Company was the employer; appellant, Texas Indemnity Insurance Company the compensation insurance carrier; Howard Dunlap, deceased, referred to in the testimony as "H. H. Bass," the employee, and his father and mother the compensation claimants. The case was tried in the district court of Jefferson county as an appeal by appellant from an adverse award of the Industrial Accident Board. The verdict of the jury was that: (a) Dunlap died on or about the 15th day of March, 1930, "as the result of the injuries received in the course of his employment"; (b) good cause was shown "for failure of claimants to file their claim prior to March 21, 1931"; (c) hardship would result to claimants if the compensation is not paid in a lump sum; (d) prior to his death the deceased did not "willingly and actively participate in horseplay or frolic with C. K. Gibbs"; (e) immediately prior to his death deceased was not "engaged in an unlawful attempt to injure his coemployee Gibbs"; (f) the death of the deceased was not caused by the act of a third person intended to injure him, "because of reasons personal to him and not directed against him as an employee or because of his employment." Judgment was entered in favor of the claimants, in accordance with the verdict of the jury.

Appellant insists that appellees' petition and cross-action was subject to the general demurrer, and that under all the evidence it was entitled to an instructed verdict. The point made is that under the pleadings and the undisputed evidence the deceased, Howard Dunlap, at the time of his death, was aggressively engaged in a personal encounter with C. K. Gibbs, a fellow employee; that he resented a practical joke perpetrated upon him by Gibbs, and in doing so he voluntarily turned aside from his employment and willingly engaged in a fight with Gibbs, which resulted in his death; that the evidence was insufficient to raise the issue that he died "in the course of his employment." As appellees' petition in cross-action was sufficient to support the introduction of all the evidence offered by them and appellant's answer supported the proposition now advanced on this appeal, it is not necessary to discuss the pleadings of either party, but the merits of the appeal can be determined by a review of the testimony. The only evidence in the record on the issue raised by appellant's propositions consists of the following written statements by James A. Redmond, C. H. Shawver, J. S. Yancey, and C. K. Gibbs, the four eyewitnesses to the unfortunate tragedy. These statements were taken for submission to the Industrial Accident Board. James A. Redmond testified as follows:

"The trouble between H. H. Bass and C. K. Gibbs started on Friday, March 14, in the work room south of No. 1 Pump House, when Gibbs painted the handle of Bass' tool box with red lead, while Bass was on the outside. When Bass came back in, he accused Gibbs of painting the handle on his tool box and Gibbs told him that while he had not done it he would clean it off and he did.

"The next morning, about 10 A. M., March 15, C. H. Shawver, J. S. Yancey, H. H. Bass, C. K. Gibbs and I (James A. Redmond) were in the work room again which is just south of No. 1 Pump House doing shop work because it was raining too hard to work on live wire on the outside.

"Bass told Gibbs that he had better not paint his tool box handle again because if he did, he was going to get on him, both of them laughing and joking about it, and Gibbs laughed and said he was going to see what Bass was going to do about it, and he got a stick, put some red lead on it and started as if to put it on the handle.

"Bass ran Gibbs to the back end of the store room and hit him on the nose, making it bleed. Gibbs got some water and washed his face and went and sat down, and told Bass he thought that was a dirty trick. Bass went back to where Gibbs was sitting down and told him if he did not like that, he would do more than that. Then Gibbs got up and they began tussling, and wrestled back to the center of the room. Gibbs fell to the floor, Bass on top of him. Gibbs shoved Bass off and got up, and Bass got up and shoved Gibbs into the brick wall, then Gibbs said `let's quit' and turned to get away from Bass, and Bass just slumped down to the floor.

"I ran after Dr. English, while Yancey gave Bass artificial respiration until Shawver relieved him to let him go after Mr. Chadbourne.

"We worked on him for quite a while after Dr. English came but could not revive him.

"Dr. English finally pronounced him dead."

C. H. Shawver testified as follows:

"About 10 A. M. on the morning of March 15, Saturday, J. S. Yancey, J. A. Redmond, H. H. Bass, C. K. Gibbs and I (C. H. Shawver) were working in the work room just south of No. 1 Pump House, because it was raining too hard to work on live wires on the outside.

"I heard Bass tell Gibbs that he had better not paint the handle on his tool box again because if he did, he was going to get on him. Both of them were laughing and joking about it and Gibbs laughed and said he was going to see what Bass would do about it, and got a stick, put some red lead on it and started as if to put it on the tool box handle.

"Bass ran Gibbs to the back end of the store room and hit him on the nose, making it bleed. Gibbs got some water, washed his face and sat down. He told Bass he thought that was a dirty trick. Bass went back to where Gibbs was sitting and told him if he did not like that, he would do more than that, then Gibbs got up and they began tussling, and wrestled back to the center of the room. Gibbs fell to the floor, Bass on top. Gibbs shoved Bass off and got up, and Bass got up and shoved Gibbs into the brick wall, then Gibbs said `let's quit' and turned to get away from Bass, and Bass just slumped down to the floor.

"Redmond ran after Dr. English, and Yancey gave Bass artificial respiration for a while, then I gave him artificial respiration while Yancey ran after Mr. Chadbourne.

"We worked on him for quite a while after Dr. English came but could not revive him.

"Dr. English finally pronounced him dead."

J. S. Yancey testified as follows:

"The trouble between H. H. Bass and C. K. Gibbs started on Friday March 14, in the work room south of No. 1 Pump House, when Gibbs painted the handle of Bass' tool box with red lead, while Bass was on the outside. Bass came back and accused Gibbs of painting the handle on his tool box and Gibbs told him that while he had not done it, he would clean it off and did so.

"The next morning, about 10 A. M., March 15, C. H. Shawver, J. A. Redmond, H. H. Bass, C. K. Gibbs and I (J. S. Yancey) were in the work room again, which is just south of No. 1 Pump House doing shop work because it was raining too hard to work on live wires on the outside.

"Bass told Gibbs that he had better not paint his tool box handle again because if he did, he was going to get on him. Both of them were joking and laughing about it, and Gibbs laughed and said he was going to see what Bass was going to do about it, and he got a stick, put some red lead on it and started as if to put it on the handle.

"Bass ran Gibbs to the back end of the work room and hit him on the nose, making it bleed. Gibbs got some water and washed his face and went over and sat down, and told Bass he thought that a dirty trick. Bass went back to where Gibbs was sitting down and told him if he did not like that he would do more than that, then Gibbs got up and they began tussling, and wrestled back to the center of the room. Gibbs fell to the floor, Bass on top. Gibbs shoved him off and got up and Bass got up and shoved Gibbs into the brick wall, then Gibbs said `let's quit' and turned to get away from Bass and Bass just slumped down to the floor.

"Redmond ran after Dr. English, while I gave Bass artificial respiration. I asked Shawver to take my place while I went after Mr. Chadbourne, then foreman. We worked on him for quite a while after Dr. English came but could not revive him. Dr. English finally pronounced him dead."

C. K. Gibbs testified as follows:

"My name is C. K. Gibbs. I live on Route 1, Montgomery, Tex., and on March 14th, 1930, I worked for the Magnolia Petroleum Co., at Beaumont, Tex.

"While employed there I met H. H. Bass, whose name I learned later was Howard Dunlap.

"On or about March 14th, 1930, for a joke, I painted the handle of Bass's tool box with red lead. Bass came in and saw it and accused me of painting it and after a while I cleaned it off. It was all in a joke, for we were good friends, and I thought no more about it.

"Then the next day, we were just laughing and talking about the matter, he said if I did it again he would get on me. I says, `I believe I will do it and see if you will do it.' I grabbed the paint brush, but didn't paint the box. Bass, in fun, ran me back to the end of the building and began hitting me, but all the time it was just in fun. One of his licks hit me on the nose and it commenced bleeding quite a bit. When Bass saw the blood he said he didn't mean to hit me on the nose. I sat down and started washing off the blood, Bass standing close by, leaning against the work bench.

"I told him that was a dirty trick and then Bass came back at me and we c...