United States Casualty Co. v. Hardie

• Court: Texas Supreme Court
• Writing for the Court: Leddy
• Citation: United States Casualty Co. v. Hardie, 299 S.W. 871 (Tex. 1927)
• Decision Date: 30 November 1927
• Docket Number: (No. 834-4895.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: UNITED STATES CASUALTY CO. v. HARDIE.

299 S.W. 871

UNITED STATES CASUALTY CO. v. HARDIE.

(No. 834-4895.)^*

Commission of Appeals of Texas, Section B.

November 30, 1927.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by the United States Casualty Co. against John T. Hardie and others to set aside an award of the Industrial Accident Board. A judgment for named defendant, and for plaintiff against J. P. (Mac) Alexander and C. M. Shackelford, was affirmed by the Court of Civil Appeals (294 S. W. 672), and plaintiff brings error. Affirmed.

Burgess, Burgess, Chrestman & Brundidge and L. Elliott, all of Dallas, for plaintiff in error.

Coke & Coke and Thos. G. Murname, all of Dallas, for defendant in error.

LEDDY, J.

This case arises under the Workmen's Compensation Law (Rev. St. 1925, art. 8306 et seq.), and presents but the single question: Were the injuries for which compensation was awarded received by the claimant while engaged in or about the furtherance of the business of his employer, and did they originate in and arise out of such employment?

Defendant in error was employed as a clerk and salesman by the Merchants' Produce Company, it being his duty to sell to the general public various kinds of produce carried by his employer. The building in which the employer carried on such business was situated in the produce district of the city of Dallas. It appears a custom existed among the produce men in that locality to borrow different articles of produce from each other when one happened to be short, and to repay the same when a shipment of similar produce was received.

On October 11, 1923, the claimant was in his employer's place of business actively engaged in the discharge of his duties as a produce salesman. On that date one Mac Alexander, an employee of C. M. Shackelford, a produce man operating an adjacent produce store, came into the place of business where claimant was employed and gathered up some lettuce and placed it in a paper bag. As Alexander started to leave, claimant called to him, asking how much lettuce he had. Alexander merely glanced at claimant and did not reply to his inquiry. Claimant then turned and resumed a conversation he was holding with two men on his employer's premises. In the meantime, Alexander set the lettuce down at the corner of the building and came to where claimant was and reached out and grabbed hold of him. It appears that claimant, "for personal purposes of his own," was wearing a new suit of clothes. When claimant was seized he asked Alexander to desist, as he had on his good clothes and would get them dirty. Alexander replied that that was just what he wanted to do, that claimant had no business with those clothes on, and that he wanted to dirty them. Alexander then attempted to throw claimant to the ground, the claimant resisting as best he could. During the progress of the struggle claimant repeatedly requested Alexander to desist, but was unsuccessful in stopping him, until finally Alexander ceased when he was informed by claimant that he was hurt.

Alexander did not directly inflict any injury upon the claimant. It seems that in exerting himself to break loose from the struggle, and to prevent Alexander from throwing him to the ground, claimant over-exerted himself, causing a dilation of his heart, causing a rather serious injury.

There is no substantial conflict in the evidence as to the nature of the struggle — that is, that Alexander was attempting to throw claimant in order to dirty his clothes — and that claimant was an unwilling participant in the struggle, the only efforts made by him being to release himself from Alexander's grasp and terminate the conflict. The claimant testified:

"I was attempting to get away from him all the time, to release myself. After he had jumped and came over and caught this grab around my back I begged him to quit, and he released me. Mac Alexander laid his hands on me first. I didn't realize at the time what his intentions were. As he grabbed me I thought about getting my clothes dirty and asked him to quit."

O. B. Mason, an eyewitness to the struggle, testified:

"They kept tussling and Hardie kept begging him to let him go, but he didn't. So finally Hardie said, `Quit, Mac; you are hurting me.' He finally turned him loose. Hardie did not attempt in this wrestling match to wrestle with his man. He tried to get loose. He told Mac Alexander to leave him alone. The way Mac Alexander had him he couldn't push. Hardie just asked him to quit."

Jack Murphy, another eyewitness, gave a similar version of what took place. He testified:

"Alexander just reached out and hooked John up against him, and John was trying to push him off, and he asked him two or three times to quit. Mac Alexander approached John from the side I think, and just grabbed him up and kind of threw him over, and John was trying to push him off all the time. He was trying to lock his arms around Hardie's neck and Hardie was trying to hold him off. Hardie was holding him off at arm's length. He was using both arms trying to push him off of him. Hardie made no effort to throw Alexander. Alexander was trying to throw Hardie. He had hold of him and tried to make further advances to get hold of him. He changed his holds and grabbed new holds and tried to get further on him all the time. It seemed like he was trying to break him down, trying to get his arms around him and squeeze him into him, and John was holding him off with his hands."

Mac Alexander tells a similar story to the other witnesses:

"I walked up and grabbed Johnnie first. I was trying to throw him."

The Court of Civil Appeals, under this evidence, found that all the claimant did when attacked by Alexander was involuntarily done; that claimant was in no sense and at no time the aggressor; that the extent and purpose of what he did was an effort to ward off the attack made upon him to prevent the assailant from soiling his clothes.

At the close of the evidence plaintiff in error, conceiving that the undisputed evidence showed claimant was not engaged in the furtherance of the employer's business at the time he was injured, and that such injury did not arise out of his employment, requested a peremptory instruction, the refusal of which being the basis of the only error assigned.

In order that an employee may be entitled to receive compensation under the Workmen's Compensation Law, the injury received must be such as is described in part 4, art. 8309, Revised Civil Statutes 1925; that is, it must have to do with and originate in the business of the employer, and the injury must be received by the employee while engaged in or about the furtherance of the business of the employer.

The Supreme Court, in the case of Lumberman's Reciprocal Association v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402, defines the character of injury compensable under the Workmen's Compensation Law to be:

"An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business."

In view of the fact that the Workmen's Compensation Law arbitrarily restricts the rights of employees who come within its provisions, it has been the policy of the courts of this state to give as broad and liberal construction of such act in favor of the employee as the terms of the act will permit. Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; McClure v. Georgia Casualty Co. (Tex. Com. App.) 251 S. W. 800.

The question arises, Does an injury received by an employee engaged in the active performance of his duties on the premises of the employer forfeit his right to compensation if he receives such injury while attempting to prevent a third party from interfering with the performance of the duties he owes to his employer?

It must be borne in mind that the claimant did not by word or act invite the struggle...