Wall v. Royal Indemnity Co.

• Decision Date: 08 October 1927
• Docket Number: (No. 11849.)
• Parties: WALL et al. v. ROYAL INDEMNITY CO.
• Court: Texas Court of Appeals

Page 319

299 S.W. 319

WALL et al. v. ROYAL INDEMNITY CO.

(No. 11849.)

Court of Civil Appeals of Texas. Fort Worth.

October 8, 1927.

Appeal from District Court, Young County; E. G. Thornton, Judge.

Suit by Mrs. Marvin C. Wall and others against the Royal Indemnity Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Penix & Penix, of Graham, and John B. Rhea, of Wichita Falls, for appellants.

Davenport & Crain, of Wichita Falls, for appellee.

DUNKLIN, J.

Mrs. Marvin C. Wall, surviving wife of Marvin C. Wall, deceased, instituted this suit for herself and minor children against the Royal Indemnity Company to recover insurance on a policy issued by the defendant to the Continental Oil Company, who, according to allegations in the petition, was an employer of Marvin C. Wall at the time of his death, and to whom the defendant had issued an insurance policy under the provisions of the Workmen's Compensation Law (Rev. St. 1925, arts. 8306-8309).

A general demurrer to plaintiffs' petition was sustained, and the plaintiffs having declined to amend, the suit was dismissed. This appeal is from those rulings, and the only question presented on this appeal is whether or not, as against a general demurrer, the plaintiffs' petition was sufficient to show a right of recovery.

The material facts alleged in the petition which, as against a general demurrer must be taken as true, are as follows: The defendant issued to the Continental Oil Company a policy of insurance as provided in the Workmen's Compensation Law. At the time the policy was issued, the Continental Oil Company was engaged in the business of oil production from leases held by it in Young county. After alleging the issuance of the policy by the defendant to the Continental Oil Company, and the fact that the latter company was a legally authorized subscriber to the Texas Employers' Insurance Association, the petition contains these further allegations:

"VIII. That the said Marvin C. Wall was on and prior to the said 8th day of July, 1925, under a verbal contract of hire to and with the said Continental Oil Company, and that he was employed by and in the employ of the said company, and that he was an employee subject to, within the contemplation of, and entitled under its terms to the benefits of the provisions of, said Workmen's Compensation Act, and that he was covered by said policy of insurance on the date of said injury and death.

"IX. That the said Marvin C. Wall was an employee of the Continental Oil Company, on the 8th day of July, 1925, and had been such an exployee for some seven months prior to said date, during all of which time he resided in or near the town of Bunger in Young county, Tex That his duties as employee of said Continental Oil Company were to attend to, and keep in operation, certain pumping stations and producing wells located at various and different places over a territory of some 80 acres of land located in Young county, Tex., leased by, and under the control of, the employer, the Continental Oil Company, there being about ten producing oil wells on said lease. That said employee's duties were those ordinarily incident and customary for a pumper on a producing oil lease, and required him to attend each and all of said wells and keep pumping machinery in operation, and caring for production from said wells. That such duties required the said employee, Marvin C. Wall, to perambulate and cover practically all of the 80-acre lease, ordinarily without any other person to assist him in the discharge of such duties, but same was done alone, and without any other association. That said employee's hours of duty were continuous from midnight to noon, and he would leave his home in the nighttime within sufficient time to reach his place of work, and begin at 12 o'clock at night, and remain in that character of employment until 12 o'clock in the daytime, or until relieved by another employee taking up such duties, when he would return to his home, which was located about one-fourth mile from said leased premises of said employer. That in making his rounds and attending said pumps he would cover practically the entire territory of 80 acres. That said 80-acre tract was rough, hilly, and isolated from all habitation and other persons, except those employed on said lease. That the road leading from said leased tract to said employee's home was secluded and little traveled, except by those having business or employment on said lease, winding between hills and timber, and coming out over a sharp rise and hill upon comparatively level open ground near said employee's home, which facts made said premises and road dangerous for said employee, in that same afforded an excellent place for evildoers to commit crime without being observed by other persons.

"X. That on said 8th day of July, 1925, and a few minutes after 12 o'clock noon, and within about 100 yards of the last well attended, and while on the said premises of the employer, and as he was leaving his car for lunch by the usual route, the said Marvin C. Wall was accosted and stopped by two men, who were accompanied by a third party. Each of the first two mentioned parties was armed with a gun, and they provoked a difficulty with the said Marvin C. Wall, which culminated in their shooting the said Marvin C. Wall to death, without his provoking said difficulty or bringing on the trouble, all of which occurred in Young county, Tex. After the killing of the said Marvin C. Wall, the two men who had committed the same, and the third, who was their friend, left the premises, and the dead body of Marvin C. Wall was found in his car later, and the men who had killed him were apprehended by the officers. That outside of the parties mentioned there were no others present or in sight of the killing, so far as known to plaintiffs.

"XI. That the two men who killed the said Marvin C. Wall were named J. A. Sharp and S. K. Graham, and they resided in the vicinity...