United States Fidelity & Guaranty Co. v. Cassell

• Court: Texas Court of Appeals
• Writing for the Court: Hall
• Citation: United States Fidelity & Guaranty Co. v. Cassell, 243 S.W. 504 (Tex. App. 1922)
• Decision Date: 24 May 1922
• Docket Number: (No. 1973.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. CASSELL et al.

243 S.W. 504

UNITED STATES FIDELITY & GUARANTY CO. v. CASSELL et al.

(No. 1973.)^*

Court of Civil Appeals of Texas. Amarillo.

May 24, 1922.

Rehearing Denied June 28, 1922.

Appeal from District Court, Wichita County; E. W. Napier, Judge.

Action by L. P. Cassell and others against the United States Fidelity & Guaranty Company. From judgment for plaintiffs, defendant appeals. Reversed and rendered.

Seay, Seay, Malone & Lipscomb, of Dallas, for appellant.

M. M. Parks and E. E. Clack, both of Dallas, for appellees.

HALL, J.

This was a suit to recover compensation under the Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, art. 5246 — 1 et seq.) for an alleged accident which occurred to Cassell, as an employee of the Wichita Theater Company. The appellant company defended upon the ground that the injuries complained of did not have to do with and originate in the business, trade, or profession of the employer, and were not received by Cassell while engaged in or about the furtherance of the affairs of his employer, but were the result of a frolic, horseplay, or other amusement by and between the injured party and other parties and employees by pranking or fooling with a pistol which was accidentally discharged, causing the injuries; that said pistol was not used in nor had anything to do with the business of the employer, and was not connected in any way with the business of the plaintiff's employer. Upon a trial to the court without a jury the court rendered judgment against the appellant. The findings of fact material to the issues to be considered are as follows:

"(8) I find that on October 9, 1920, and prior thereto, one Walter Crosby was manager of the Wichita Theater Company, and had supervision over the entire work; that the said Walter Crosby had authority to issue orders to the employees; that he had authority to employ and discharge employees and to do anything necessary to the conduct of the business.

"(9) I find that on the said October 9, 1920, and prior thereto, the said W. C. Shaver was 22 years of age, and was manager of the stage of the Wichita Theater Company, and as such had immediate supervision, direction, and command over the employees of the said stage, including the plaintiff, L. P. Cassell, who was a stage employee. I further find that the said Shaver had authority to issue such orders to the stage employees as were necessary to the conduct of the business, and to employ and discharge the plaintiff, L. P. Cassell. I further find that the said W. C. Shaver, as such stage manager of the Wichita Theater Company, employed the plaintiff Cassell. I further find that as to all other employees the said Shaver had authority to employ and discharge them with the approval of the said Walter Crosby.

"(10) I find that on October 9, 1920, and prior thereto, the said Walter Crosby and W. C. Shaver required and permitted pistols and other firearms to be kept on and about the stage of the Wichita Theater Company, to be used when needed in certain acts of the theater; that the said pistols so kept were sometimes fired to create an atmosphere for an act which was going on, and when a pistol was so fired off the stage the said Shaver sometimes fired it; that said pistols were handled by employees of the Wichita Theater Company, which employees had at all times access to them.

"(11) I further find that at the time of the accident to Cassell the said Cassell was in the course of his employment and in the discharge of his duties as a stage employee of the Witchita Theater Company, and was in the immediate presence of and under the supervision, direction, management, and command of his superior, W. C. Shaver. I further find that Cassell had taken no part in any horseplay that was being carried on around him.

"(12) I further find that there had not existed the practice or custom among employees to snap pistols at each other, and that so far as the records show this has never been done except on the night of the injury to Cassell and in the manner prescribed in my next finding as to how the accident occurred to Cassell, except that in the morning of the same day a girl had another pistol on the stage that nearly all of the employees had fooled with during the day. I find further that the said Walter Crosby did not have knowledge of such horseplay with pistols by the employees, and if he had had such knowledge he would have probably called them down.

"(13) I find that Cassell received the pistol wounds which occasioned the injury herein about 11:30 Saturday night, October 9th; the pistol belonging to and was the personal property of W. C. Shaver, and was not being used by said Shaver in any manner connected with his duties as employee. I find that about 15 minutes prior to the time that Cassell was shot said W. C. Shaver had in fun, or as a prank, and with no intent to injure, snapped the pistol once or twice at a young lady by the name of Gossett; that between the time he snapped it at the young lady and the time Cassell was injured he...