Traders & General Ins. Co. v. Boysen

• Decision Date: 13 January 1939
• Docket Number: No. 3340.,3340.
• Citation: 123 S.W.2d 1016
• Parties: TRADERS & GENERAL INS. CO. v. BOYSEN et al.
• Court: Texas Court of Appeals

123 S.W.2d 1016

TRADERS & GENERAL INS. CO. v. BOYSEN et al.

No. 3340.

Court of Civil Appeals of Texas. Beaumont.

January 13, 1939.

Rehearing Denied January 18, 1939.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

Suit by Traders & General Insurance Company against Mrs. Agnes Boysen, who filed cross-action, and another to set aside a compensation award. From judgment rendered, the plaintiff appeals.

Reformed, and, as reformed, affirmed.

B. L. Collins, of Dallas, Thos. J. Hightower, of Liberty, Lightfoot, Robertson, & Gano, of Fort Worth, and Barnes & Barnes of Beaumont, for appellant.

Horace D. Grogan, of Liberty, and Allen, Helm & Jacobs and Percy Foreman, all of Houston, for appellees.

WALKER, Chief Justice.

This is a Workmen's Compensation case. Appellant, Traders & General Insurance Company, was the compensation insurance carrier; T. S. C. Motor Freight Lines, Inc., the employer; and Sherman Leslie Boysen, decd., referred to in the record as "Bud," and "Boysen," the employee. On March 7, 1936, Boysen was directed by his employer to go from Houston to Liberty to lighten the loads of two overloaded trucks, which had been held up by the Highway Patrol because of overloading; Boysen went to Liberty as directed by Martin, president of the employing company. Finding that the officers had left Liberty, instead of transferring part of the loads to the truck which he carried for that purpose he sent the driver with the trucks on to Beaumont without reducing the loads; and instead of returning to Houston later in the night, at about 4 o'clock in the morning he decided to take two of the boys whom he had brought along as helpers and to drive on to Beaumont. At a point about one and one-half miles east of Devers, Boysen, driving the truck himself, left the highway, and drove across a ditch and on up onto the bank on the other side of the ditch, through the railroad fence, and on across the railroad right of way, to the edge of the railroad track where the car turned over. Boysen was killed and the other boys with him were injured. Mrs. Agnes Boysen, a feme sole, was the mother of the deceased, and the divorced wife of the deceased's father, A. M. Boysen. On the 1st day of April, 1936, Mrs. Boysen filed the following "claim" with the Industrial Accident Board:

"This is to notify you T. S. C. Motor Freight Lines, Inc., & Traders & General Ins. Co. (Name of employer or association or company with which employee is insured) that I claim compensation from you under the Employers' Liability Act of Texas on account of the death of Sherman Leslie Boysen (Name of deceased employee) on the 7th day of March, 1936, which resulted from injuries sustained on the 7th day of March, 1936, while in the employ of T. S. C. Motor Freight Lines, Inc. (Name of employer)

The place of injury was Devers Beaumont Highway (State name or description of building or place)

Fractured Skull and Fractured Ribs

The cause of death was Resulting in Shock from which he never rallied (Describe cause of injury).

Name and P. O. Address of witnesses in support of claim:-

Give names and P. O. Addresses of the Beneficiaries of the deceased (stating the kinship of each such Beneficiary to the deceased); Mrs. Agnes Boysen (Mother) 5317 Texas, Houston, Texas.

Which of the legal Beneficiaries above named are Minors? State ages none

Length of time employed in same employment previous to date of injury 4½ yrs. (Years, months, or days.)

Wages of deceased employe on date of injury were $25.00 per week (Day, week or month)

Deceased was employed 7 per week (State whether 6 or 7 days).

"This claim for compensation, with respect to such injury and because of the death of deceased, is made in behalf of and for each and all of the legal Beneficiaries of the deceased, as well as by and for the undersigned, he herein acting for himself and such legal Beneficiaries.

                       "(Signed) Mrs. Agnes Boysen
                               "(Signature of claimant.)
                "(Industrial Accident       "5317 Texas
                    Board)          "(Street and number.)
                  "State of Texas         "Houston, Texas
                "(Received Apr 1 1936     "(City or town.)
                "Dated this 23 day of March, 1936."
                

A. M. Boysen, father of the deceased, filed no separate claim. On the 25th day of May, 1936, the Board made its award in favor of the mother, finding that she was the "exclusive beneficiary" of Sherman Leslie Boysen, decd.; appellant was directed to pay Hotel Dieu a hospital bill of $39.75. From the award, appellant duly prosecuted its appeal to the district court of Liberty County. Mrs. Boysen, the mother, one of the appellees, answered in part as follows: "* * * and the said father of Sherman Leslie Boysen has not made any claim of any kind or character to said compensation insurance, and no award has been made by the Industrial Accident Board in his favor, and by reason of the premises the defendant and cross plaintiff, Mrs. Agnes Boysen, was and is entitled, under the Workmen's Compensation Act of the State of Texas, to the full amount of compensation payable for the death of Sherman Leslie Boysen as hereinafter more specifically alleged. * * * It is respectfully shown that Mrs. Agnes Boysen is a widow, divorced from her husband, who has remarried and for many years has contributed nothing to the support of her or her daughter * * *."

She plead also in detail, by way of cross action, the nature of her claim for compensation, and facts entitling her to compensation and to a lump sum settlement, as a beneficiary under the Workmen's Compensation Act for the death of her deceased son. A. M. Boysen, the father, plead, "Now comes A. M. Boysen, * * * and respectfully represents to the court:

"1. That he is the father of Sherman Leslie Boysen, now deceased, * * * and has not made any claim of any kind or character to said Workmen's compensation, either before the Industrial Accident Board or elsewhere," and further, that he had given and assigned the full amount of compensation due him to Mrs. Boysen, and had waived all claim thereto in her behalf, and in the alternative and only in the alternative, that, if it should appear that Mrs. Boysen was not entitled to recover the full compensation, he was entitled to recover one half thereof. As a basis for such claim, he adopted the allegations contained in Mrs. Boysen's cross action and made them a part of his pleadings. He prayed that she recover the full amount, and in the alternative, if she be denied the full amount, that he recover his one half thereof. Appellant answered by supplemental petition, controverting the fact issues made by appellees. On the issues submitted by the court in its charge, the jury found in favor of appellees. On the verdict, judgment was entered in favor of Mrs. Boysen against appellant for $5,887.07 to be paid in a lump sum, and in favor of Hotel Dieu for the sum of $39.75. It was further ordered that Mrs. Boysen "do have and recover from the cross defendant, A. M Boysen, the entire amount of the Workman's Compensation payments to which he became entitled as a result of the death of Sherman Leslie Boysen."

The jury found that Boysen was killed in the course of his employment; appellant contends that he departed from his employment by attempting to drive from Liberty to Beaumont. The general principle of law, in point on the facts of this case, was thus stated in Texas Employers' Insurance Association v. Schwarz, Tex.Civ.App., 107 S.W.2d 666, 669: "To entitle the employee to recover under the compensation act it is not essential that the cause of the injury should arise out of some act of the employment itself, in the sense in which the term is used; that is, the cause of the injury is not restricted or confined to the exact duties prescribed for the employee, but whatever may be incidental to or connected with what the employee must do within the period of the employment must necessarily belong to the employment."

The following summary of the evidence, taken from appellees' brief, supports the jury's verdict, when construed by the proposition of law we have taken from the Schwarz Case:

"Marion Martin, president of the T. S. C. Motor Freight Lines, testified that it was a common carrier by truck. The company did not make a bona fide effort not to load the trucks with more than 7000 pounds. Prior to, and about the time of Boysen's death, they were having trouble with the law with reference to overloaded trucks. When an overloaded truck was caught on the highway they had to go out and take the surplus load off of the truck and when the highway patrol would stop and weight them, if they had more than 7000 pounds on the truck they sent one of the drivers to the telephone and they called the office and told them they were being detained wherever they were. They would technically arrest the drivers, but would release them as soon as the surplus loads were relieved off the trucks. In 75% of the cases, Martin went out, and in the others, it depended on who was available. Mr. Blewett had gone out, and Frank Scott, for several years a special agent for the company, went a little, and in some cases Boysen went out. Boysen went out in something less than 33- 1/3 % of the cases. He was interested in getting the trucks through as soon as possible, and seeing that the boys didn't lose any time. Getting the trucks through as soon as possible was the main purpose of going out. Boysen was dock foreman for T. S. C. Motor Freight Lines, and had worked as such for about two years. He was in direct charge of the local physical handling of the freight. He had supervision of the loading and unloading of the freight, of trucks, at the docks, and was directly in charge of the local pick-up drivers. His responsibility was to get the freight out, and if they didn't have enough trucks to handle the business that day he used his own discretion or called Martin if he was available, and if not, used his own discretion as to...