Union Indemnity Co. v. Malley

• Decision Date: 15 December 1927
• Docket Number: (No. 3448.)
• Citation: 1 S.W.2d 923
• Parties: UNION INDEMNITY CO. v. MALLEY et al.
• Court: Texas Court of Appeals

1 S.W.2d 923

UNION INDEMNITY CO. v. MALLEY et al.

(No. 3448.)

Court of Civil Appeals of Texas. Texarkana.

December 15, 1927.

Rehearing Denied January 19, 1928.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by the Union Indemnity Company against Mrs. Mary Malley and others to set aside an award in compensation proceedings. From an adverse judgment, plaintiff appeals. Reversed and rendered.

Vinson, Elkins, Sweeton & Weems, of Houston, for appellant.

Johnson & McConnell, of Houston, for appellees.

HODGES, J.

In May, 1926, H. L. Holcomb was engaged in making a "fill" at the docks of the Southern Pacific Company at Clinton, in Harris county, Tex. He was doing business under the name of the Houston Excavating Company. He employed a number of men, and carried a policy of insurance issued by the appellant under the terms of the Workmen's Compensation Law of this state (Vernon's Ann. Civ. St. 1925, arts. 8306-8309). Among his employees was F. J. Malley, the husband of the appellee Mrs. Mary Malley. F. J. Malley was employed principally as a night watchman, and it was his duty to prevent molestation of the property used by his employer in the prosecution of his work. The premises placed under the care of Malley extended along the bank of the ship channel about 1,800 feet. There was situated on the premises of Holcomb what was called a "portable toolhouse," where tools and miscellaneous articles used in the prosecution of the work were stored. This toolhouse was made of corrugated iron and was 5 feet wide by 5 feet high and about 15 feet long. It had double doors at one end, extending the entire width, and one door on the side. At the front end of the toolhouse was a "built-in" gasoline engine. The exhaust pipe of this engine was at the door, and so arranged that when the door was closed the engine exhausted inside of the toolhouse. On the night of May 14, 1926, Malley was left alone in charge of the premises about 7:30 or 8 o'clock. The following morning, between 6 and 7 o'clock, he was found lying on the floor of the toolhouse, dead. His widow presented a claim to the Industrial Accident Board, in accordance with the provisions of the Workmen's Compensation Law, and an allowance was made in her favor. The appellant later filed this suit in the district court of Harris county to have that award set aside upon the ground that the evidence was insufficient to show that the death of Malley was caused by accidental injuries sustained while acting within the scope of his employment.

The case was submitted to a jury upon special issues. The findings of the jury were, in substance, that Malley died as a result of a personal injury which originated in the work or business of his employer and while he was engaged in or about the furtherance of the affairs of his employer. The jury also found that the average weekly wage of Malley amounted to $31.50, and that Mrs. Malley was entitled to a lump sum settlement. A judgment was rendered in accordance with those findings.

The first, and what appears to be the principal, ground presented for a reversal of the judgment, is that the evidence shows that the injury which caused the death of Malley was not a compensable one under the provisions of the Workmen's Compensation Act, because the injury did not originate in the service of his employer, or while he was engaged in the furtherance of the affairs or business of his employer. It is contended that it conclusively appears from the attending circumstances that Malley died from suffocation after he had abandoned his duty and had voluntarily gone to sleep in the toolhouse.

In connection with the issues submitted to the jury the court gave the following explanatory charge:

"It is the duty of the night watchman to stay awake; and if the deceased in this case went into the toolhouse for the purpose of going to sleep and did so intentionally, it would be a departure from his line of duty; or if he went in there for any other purpose and fell asleep unaffected by carbon monoxide gas, that would amount to a departure from his line of duty."

It is apparently conceded that Malley's death was due to suffocation caused by inhaling carbon monoxide gas emitted by the gasoline engine in the toolhouse. Why Malley went into the toolhouse, and what he was doing when overcome by the gas, can be ascertained only by considering the surrounding circumstances. Mrs. Malley testified that he had been on duty the night before, and had slept till about 3 o'clock p. m. on May the 14th. He was a young man in apparent good health. There is no evidence that he was subject to any special ailment, or that on the night of his death he had been subjected to any violence which tended to disable him. The testimony of Holcomb and his workmen showed that at the close of the day a heavy shower of rain had fallen, which made it impracticable to prosecute the work during the night. Because of the rain all of the employees except Malley left the premises and went to their homes. The shower, however, was of short duration. Immediately after it fell the weather became cold and disagreeable. When the other employees left the place the doors of the toolhouse were open, and there...