Vivier v. Lumbermen's Indemnity Exch.

• Decision Date: 25 April 1923
• Docket Number: (No. 419-3780.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 250 S.W. 417
• Parties: VIVIER v. LUMBERMEN'S INDEMNITY EXCH. et al.
• Court: Texas Supreme Court

250 S.W. 417

VIVIER v. LUMBERMEN'S INDEMNITY EXCH. et al.

(No. 419-3780.)^*

Commission of Appeals of Texas, Section A.

April 25, 1923.

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

Action by the Lumbermen's Indemnity Exchange and others against Mrs. Jules Vivier to set aside an award by the Industrial Accident Board in favor of defendant and an award of attorney's fees. Judgment sustaining the award was reversed by the Court of Civil Appeals (239 S. W. 286), and defendant brings error. Reversed as recommended by the Commission of Appeals.

R. E. Masterson, of Beaumont, and J. W. O'Neal, of Port Arthur, for plaintiff in error.

C. A. Lord, of Beaumont, for defendants in error.

RANDOLPH, J.

This was an action instituted by defendant in error in the district court of Jefferson county to set aside an award by the Industrial Accident Board in favor of Mrs. Vivier, plaintiff in error, as compensation for the death of her husband, and also awarding to J. W. O'Neal a percentage thereof as attorney's fees. The trial court rendered judgment sustaining the Accident Board's award. On appeal from this judgment the Court of Civil Appeals, by a majority opinion, reversed the trial court's judgment and rendered judgment for defendant in error. 239 S. W. 286.

In granting the application for writ of error herein, the Supreme Court made this notation: "We are inclined to the opinion deceased met his death in course of employment."

On the 27th of September, 1919, Jules Vivier was in the employ of George W. Smyth Lumber Company, as night watchman, and on that night was assassinated by unknown parties. Vivier's duties were to stay at the plant all night, and to guard the property against fire and depredation. In the course of his night duties, he had, at stated intervals, to punch the watchman's clock. The last punch showed the hour to be 9:15. He was not found until morning and was discovered sitting in his chair unconscious. He had evidently been struck on the head with an iron bar. The day of his injury he had been paid his weekly wage, and on the ground near where he was sitting his pay envelope torn open and a copy of the Saturday Evening Post were found, with the money gone from the envelope. He had 35 cents in his pocket, which was not taken, and there was nothing missing on the premises that belonged to the company. At the time he was found he was still alive, but died soon after his removal to a hospital.

The majority of the Court of Civil Appeals, in reversing and rendering the trial court's judgment, held that the undisputed evidence in the case established the fact that the injury which resulted in the death of deceased was not sustained in the course of his employment, but that he received such injury at the hands of an assassin whose motive was to rob the deceased of money on his person, and because of that fact, such injury and death were brought about by "reasons personal" to the deceased.

That portion of article 5246—82, Vernon's Civil Statutes 1918, defining "injury sustained in the course of employment" and excluding injury received by reasons personal to the party injured or killed, is as follows:

"The term `injury sustained in the course of employment,' as used in this act, shall not include. * * *

"(2) An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment."

The defendants in error contend that because the Court of Civil Appeals has found as a fact that the deceased was robbed of $19.25 and that robbery was the only motive prompting the assailant to commit the assault upon deceased, that the Supreme Court is bound by this finding of fact so determined, and cannot render any other judgment. This proposition is not sound, because the defendant in error fails to distinguish between the fact found and the conclusion of law that follows upon such finding. We accept this finding of fact by the Court of Civil Appeals, but hold that that court erred in their application of the law to the fact found.

We cannot conceive that the Legislature, in providing that no compensation should be allowed an employee's dependents when he meets death or is injured by the act of a third person, intended to injure him because of reasons personal to him, and not directed against him as an employee, intended that such provision should apply to an employee injured or killed under the circumstances of this case. As we apprehend the intention of the Legislature, it was to apply to such cases where antecedent malice existing in the mind of another causing the other to follow the employee and inflict injury upon him, wherever he was to be found, or to cases where the employee by his own initiative provoked a difficulty which caused the other party to feel a "personal" interest in assaulting him.

In the instant case the deceased was employed as a night watchman. During the long hours of the night his was the duty of protecting his employer's property from fire and depredation. If there was no risk, why the employment? To say that there was no additional risk attached to this duty which was not brought about by the employment is to pronounce as a piece of foolishness such employment of him as a night watchman. By reason of the performance of his duty, deceased was placed in a position which contributed to the effectuation of the designs of the assassin, and furnished the opportunity for injury or death that would not have existed but by reason of his situation in the performance of his duty.

In the case of Lumberman's Reciprocal Association v. Behnken (Tex. Sup.) 246 S. W. 72, Justice Greenwood lays down the general rule that—

"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. As tersely put by the Supreme Court of Iowa:

"`What the law intends is to protect the employee against the risk or hazard taken in order to perform the master's task.' Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. 918."

Applying this rule to the facts of the case at bar, we hold that the deceased, in the performance of his duties as night watchman, and in the course of his employment, was placed in a position where his environment contributed to his risk and that the fact that he was killed in the discharge of his duties evidenced the further fact that he would not have been killed but for his presence at the plant in the performance of such duties.

We quote from the following cases in support of this holding:

The rule laid down in the case of Heidemann v. American District Telegraph Co., 230 N. Y. 306, 130 N. E. 303, in the case of a night watchman killed by the police, that his death did arise out of the employment within the meaning of the statute, is one that clearly illustrates our conception of the intention of the Legislature in enacting our statute, and we quote as follows:

"In September, 1919, Carl V. Heidemann was employed as a night watchman by the American District Telegraph Company, which was engaged in the business of furnishing its subscribers with protection against burglary. His duty was to patrol the streets in a given section of Brooklyn, try the doors, and keep watch and ward until relieved. About 3 o'clock in the morning of September 22, 1919, in the course of his regular work, he was accidentally shot by a police officer then in the pursuit of burglars. The first shot was fired in the air; the second hit Heidemann and killed him. An award under the Workmen's Compensation Law, in favor of his widow, was reversed at the Appellate...