Traders' & General Ins. Co. v. Ratcliff

• Citation: 54 S.W.2d 223
• Decision Date: 19 October 1932
• Docket Number: No. 3885.,3885.
• Parties: TRADERS' & GENERAL INS. CO. v. RATCLIFF et al.
• Court: Court of Appeals of Texas

54 S.W.2d 223

TRADERS' & GENERAL INS. CO. v. RATCLIFF et al.

No. 3885.

Court of Civil Appeals of Texas. Amarillo.

October 19, 1932.

Rehearing Denied November 23, 1932.

Appeal from District Court, Gray County; E. F. Ritchey, Judge.

Action by Mrs. M. A. Ratcliff and others against the Traders' & General Insurance Company. From a judgment for named plaintiff, defendant appeals.

Reversed and rendered.

Will R. Saunders, of Amarillo, and Lightfoot, Robertson & Scurlock, of Fort Worth, for appellant.

Willis, Studer & Studer, of Pampa, and A. A. Cohn, of Brookhaven, Miss., for appellees.

JACKSON, J.

This suit was instituted in the district court of Gray county, Tex., by the appellees, the mother and brother and sisters of Frank E. Ratcliff, deceased, against the appellant, to recover compensation for the death of deceased, who was accidentally killed on April 2, 1931, while alleged to be an employee of the Dixon Creek Oil & Refining Company, which carried indemnity insurance with appellant.

The appellees presented their application for compensation for the death of the deceased to the Industrial Accident Board of the state, compensation was refused, and they gave notice that they would not abide by the order of the board, and in due time filed this suit.

The record presents no jurisdictional question and no question with reference to the sufficiency of the pleading that we deem necessary to consider in view of the disposition to be made of the appeal.

The court, at the conclusion of the testimony, dismissed the cause of action asserted by the brother and sisters of the deceased.

In response to special issues submitted by the court, the jury found, in effect, that Frank E. Ratcliff sustained personal injuries on April 2, 1931, which resulted in his death, and that such injuries were received while in the course of his employment with the Dixon Creek Oil & Refining Company. They found that the average weekly wage of employees in the vicinity doing the same kind and character of work was $38.94. On these findings the mother, Mrs. M. A. Ratcliff, was given judgment for 360 payments of $10 each, payable weekly, with interest from each maturity date stated in the decree, and the judgment is before us for review.

The appellant assails as error the action of the court in refusing its requested peremptory instruction, and challenges the sufficiency of the testimony to support the finding of the jury that the deceased was killed in an accident arising in the course of and out of his employment and while engaged in and about the furtherance of the affairs of the business of his employer.

The testimony shows: That Frank E. Ratcliff was a single man, 35 years of age, and for some time prior to April 3, 1931, was employed by the Dixon Creek Oil & Refining Company as foreman or "gang pusher" in the yards of its refining plant, situated on about two acres of land six miles from the town of Pampa. That said company had a bunkhouse on said land in which the deceased slept, and that situated on said land was a boarding house at which he took his meals. That the plant, when running, was operated 24 hours per day, but on April 2d the refinery had been shut down for eight or ten days to build a fire still which was necessary to operate the refining plant. That the deceased and the day crew over which he was foreman worked from 7 a. m. to 5 p. m. every day unless a breakdown occurred, and then they worked from 7 a. m. to 7 p. m., the hours after 5 p. m. being overtime. That the deceased and his crew worked by the hour, and on April 2d they worked from 7 a. m. to 7 p. m., at which hour the crew was changed. That after work hours the company had no authority over the movements of the deceased, as he was his own boss and could do what he wished, but, if a breakdown or emergency occurred after work hours, he and his crew, if they could be found, would be called to assist in such emergency work; however, they were not required to hold themselves subject to the call of their employer from 7 p. m. to 7 a. m. That the employees living off the premises of the company were required to furnish their transportation to and from their work and the company had no agreement with them to furnish such transportation. That the company had two trucks and furnished its superintendent with a Ford coupé for his use in its business, and occasionally, when any of these vehicles were going to Pampa on other business for the company, an employee was allowed to ride to or from Pampa. That about 5:30 or 6 o'clock, p. m., Mr. Leroy Davis, the timekeeper for the company, and Mr. Carl Hunter, the superintendent, went from the plant to Pampa in the coupé furnished by the company to the superintendent. That the superintendent remained in town and the timekeeper returned to the plant in the coupé, with the understanding that he would go back to Pampa about 8 o'clock p. m. and get the superintendent and take him to the plant.

Mr. Bob Reed, a witness for the plaintiffs, testified that he was working in the yard of the company on April 2, 1931, and knew Frank E. Ratcliff and that on that day they quit work at 7 p. m. That he lived in Pampa and generally went to and from the plant in his own car, but on April 2d he did not have his car with him at the refinery, as he had loaned it to a friend. That after he quit...