United States Fidelity & Guaranty Co. v. Loyd

• Decision Date: 12 November 1926
• Docket Number: (No. 3281.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 288 S.W. 662
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. LOYD et al.
• Court: Texas Court of Appeals

288 S.W. 662

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

(No. 3281.)^*

Court of Civil Appeals of Texas. Texarkana.

November 12, 1926.

Rehearing Denied November 25, 1926.

Appeal from District Court, Upshur County; J. R. Warren, Judge.

Proceeding under the Workmen's Compensation Act by P. S. Loyd and another for the death of Paul Loyd, opposed by the Gilmer Motor Company, employer, and the United States Fidelity & Guaranty Company, insurance carrier. From an award of the Industrial Accident Board the insurance carrier appeals. Affirmed.

See, also, 278 S. W. 282.

Seay, Seay, Malone & Lipscomb, of Dallas, and Briggs & Davis, of Gilmer, for appellant.

C. E. Florence, of Gilmer, for appellees.

HODGES, J.

This suit was filed in the court below by appellant as an appeal from an award of the Industrial Accident Board. On June 16, 1924, Paul Loyd, an employee of the Gilmer Motor Company, was accidentally killed. His father and mother, appellees in this court, presented a claim to the Industrial Accident Board and were awarded $14.42 per week for 360 weeks. A provision was also made in the award allowing attorney's fees to be paid in weekly installments.

The principal question presented in this appeal is, Do the facts show that Loyd was killed while in the performance of a service for his employer? The jury found that he was, and, upon that finding, an appropriate judgment was rendered.

The following are, in substance, the material facts proved on the trial: Approximately 60 days prior to the accident, the Gilmer Motor Company, who carried a policy with the appellant, had sold a Fordson tractor to one of its customers. It was understood between the buyer and the seller that the former was entitled to free service in the way of repairing defects that might develop during a period of 90 days after the sale. On the day of the accident Paul Loyd and other employees were engaged in unloading a shipment of Ford cars for the Gilmer Motor Company at the Cotton Belt depot in Gilmer. The railway platform used in loading and unloading freight at that place was elevated some distance above the ground and was approached by an inclined driveway. While Loyd and his associates were unloading and putting the new cars together, the tractor, previously referred to as having been sold by the Gilmer Motor Company, was driven to the platform and stopped at the foot of the inclined driveway. The tractor was driven by S. W. Ledbetter, an employee of the purchaser, for the purposes of being shipped to an oil field in Louisiana. After stopping the tractor at the foot of the driveway, the driver called Loyd's attention to some needed adjustment of the machine. It appears that the ignition system of the tractor was not in good working order. The engine was "missing," and there was a consequent loss of motor power. Loyd responded and made some adjustments about the coils and the carburetor, which apparently remedied the defects. He then undertook to drive the tractor up the inclined driveway to the platform. In the attempt, the tractor turned over and crushed his body so that he died in a short time thereafter.

Stracner, a witness for the appellant, testified:

"I saw Wess Ledbetter when he drove the tractor up there. He drove the tractor up and just run the front wheels up on the incline of this driveway, and the hind wheels of the tractor were against the abutment of the driveway, and he stopped it there in that position. When he stopped it, he just said to Paul: `Paul, it is not running right; it won't pull nothing; I wish you would do something to it or adjust it — whatever it needs to have done to it. I wish you would look it over.' Paul Loyd then just went down by the side of the tractor, on the right-hand side. * * * Paul Loyd then put his foot up on some part of the tractor and just reached over in front of Wess. Wess hadn't got off of it at this time, and of course the motor was running, you know, and he reached over there and was fooling with something or other, I don't know what it was, I suppose the carburetor or something, and at that time Wess got off of it. I was down there with them at that time. And Wess got off of it while Paul was fooling with it; and, when Wess got off, Paul just got over and sat down in the seat and was still tinkering with it. When he got in the seat, after he quit fooling with it, he taken off something, or was fooling with something directly in front of him. * * * Yes; it was missing when he was coming up. It quit missing after Paul worked with it awhile. Before Wess got off of the tractor, he asked Paul Loyd to fix that and drive it up there for him; and when he got off, while Paul was fooling with this — in this position that I am indicating — when he was standing up reaching over — when Wess got off he said: `Go over there in that seat and drive that thing up there for me — I am new on the job — the first one I ever drive.' * * * No; Paul Loyd did not make any reply to that. When he quit working with it, then he made an effort to pull the driveway. * * * Just as soon as he got through adjusting this coil, or whatever it was that he was fooling with, why he made an effort to pull it. * * * I will say it was just about like any other man would be fixing a car; when he got his car fixed, as soon as he could get his gear shifted, or something like that, he would make an effort to start it."

Ledbetter, the driver of the tractor, testified that when he asked Loyd to make the adjustments, the latter did as he was requested and adjusted the carburetor and the coils. He said:

"After I got off of the tractor and after he [Loyd] sat down, the next thing he did was to drive it up there — started to. * * * I told Paul Loyd that it was my first day driving a Fordson tractor. When Paul started to drive this tractor up that incline was immediately after he got it to hitting. I don't know whether or not at the time he started to driving the machine up the incline he was then still attempting to adjust the carburetor or coil."

On cross-examination, he was asked if he had not signed the following affidavit on a previous occasion:

"The reason I asked Loyd to drive this tractor up the incline for me was that it was my first day on one of them, and I didn't know anything about it, and it wasn't hitting. But Loyd got it to working all right and then started to drive it up the incline for me, when it...