222 S.W.2d 907 | Tex. App. | 1949
This is a Workmen’s Compensation suit brought by Patsy Williams, alleging herself to be the surviving widow and the sole and only beneficiary of Clarence Williams, who it is alleged died in Orange County, Texas, on or about Octobter 23, 1947, as the-result of certain'injuries alleged to have been received in the course' of his employment while an employee of Trotti '& Thomson, Inc., in Orange County, Texas. Appellee sought to recover $25:00 per week for the definite period of 360 weeks 'from and after • the' date of'the death "of ' the deceased. The defendant answered by a'general denial.
At the conclusion of the testimony defendant duly moved the court to peremptorily instruct the jury to'return a verdict for the appellant and against the appellee. This motion was overruled by the trial court and the cause was submitted to the jury, who returned into court its verdict, finding in substance that at the time and place in question the deceased was an employee of Trotti & Thomson, Inc.; that the injuries» so sustained were accidental injuries sustained in the course of his
Appellant’s first point complains of the refusal of the trial court to grant its motion for instructed verdict; contending that the evidence conclusively established that the deceased was not in the course of his employment at the time he received his alleged injuries. In connection with this point we think the evidence conclusively established the following: that Trotti & Thomson, Inc., was engaged in-the business of building roads and bridges in Orange 'County, Texas,, on the date of the death of Clarence Williams; that on said date and for some time prior thereto, said Clarence Williams had been working for Trotti & Thomson as a common laborer; that the office and headquarters for Trotti & Thomson were located a short distance out of the city of Orange; .that it was the custom of Trotti & Thomson to pick up their employees each morning at a point in the city of Orange and transport them to their headquarters and office where the various employees were assigned to their respective duties; that on the morning of October 23, 1947, as was their custom, the said Clarence Williams, together with other employees, was picked up by a truck at 4th and John Streets, in the City of Orange, and transported to the office and headquarters of Trotti & Thomson; that upon reaching that point the employees immediately became subject to the orders of Trotti & Thomson as to when and where they should begin their daily work; that on the date in question the general rule was that the employees begin their work at 7:30 o’clock A.M., however there were certain exceptions to this rule and that some of their employees might be -ordered to proceed with their work at an earlier hour. This was especially true as to the deceased, 'Clarence Williams, whose job it was on the particular day in question .to keep the concrete wetted down where a bridge was being constructed. This was at a point a short distance from the office, and the deceased was subject to being ordered to work immediately upon his arrival at the headquarters of Trotti & Thomson should there be any work necessary to be done at that time; that' if was the usual and customary practice of the employees of Trotti & Thomson, after reaching their headquarters, to engage in a game played with dice commonly referred to as “craps”; that this crap game, was carried on adjacent to the office of Trotti & Thomson, and that the men in charge of this work, with full knowledge that such game was being carried on, acquiesced therein and that such game was participated in. by the employees generally, including the white and Negro employees, the foremen and the regular laborers in general without any distinction as to rank or color; that on the morning of October 23, 1947, such a crap 'game was being carried on on the premises of Trotti & Thomson, and was being participated in by several of the employees, including Clarence Williams, who was a Negro, laborer and a white man by the name of Bennie Thornton who was a carpenter foreman. During the progress of the game at a time near 7:30 o’clock a white man by the name, of Broom-
In view of the finding of the jury upon this controverted issue that the fatal injuries to 'Clarence Williams, deceased, was not caused by Clarence Williams’ willful intention and attempt to unlawfully injure Bennie Thornton, which finds ample support in the evidence, we will not go into the details of such evidence. As a result of the fatal injuries tp Clarence Williams, Bennie Thornton was charged and plead guilty to the offence of negligent homicide and paid a fine therefor. The evidence further excluded the idea of “antecedent malice existing in the mind of the assailant, Bennie Thornton, against -and towards Clarence Williams, deceased, at the time of the blow.” It affirmatively appears that no previous trouble existed between Thornton and. Williams, and that neither harbored any ill will toward the other. .It is upon this state of tbe evidence that appellant contends that the fatal, injuries sustained by 'Clarence Williams were not sustained in the course of his employment ; first because the work call had not been given and therefore Clarence Williams was not actually engaged in the performance of his duties as a workman for-his employer, and, further, because the evidence conclusively shows that the injuries did not have to do with and originate in the work, business, trade or profession of this employer. Appellant has cited many cas.es supporting ■ the ; contentions. made, among .which is Aetna Life Insurance Co. v. Matthews, Tex.Civ.App., 47 S.W.2d 667; Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex 103, 246 S.W. 72, 28 A.L.R. 1402; Associated Employers Lloyds v. Groce, Tex.Civ.App., 194 S.W.2d 103; Fidelity & Casualty Co., of New York v. Cogdill, Tex.Civ.App., 164 S.W.2d 217.
The word “injury” as used in Article 8309, Sec. 1, Vernon’s-‘Civil Statutes, has been uniformly construed by appellate courts to mean an injury which has to do with-or arises out of the work of the employer in order to be an injury sustained in the course of employment within the Workmen’s Compensation Act, and only compensable when the results from a risk or hazard which was necessarily or ordinarily or reasonably inherent in or incidental to the conduct of such work or business. We are convinced that Clarence Williams was in the course of his employment at the time he received his fatal injuries in the sense that he was upon his employer’s premises for the purpose of
In discussing the different views adopted by the courts in either allowing or refusing compensation- in assault cases, we find
Here the crap game in which the deceased was participating at the time of his injuries had truly become a part of his working environment. Here it is conclusively shown that employees of Trotti & Thomson habitually participated in this form of amusement or entertainment with the full knowledge and acquiescence of their employer, and, to the extent that the responsible representatives of the company participated in such games, were encouraged. Such an event, as did happen, should have reasonably been foreseen by any reasonably prudent person living in this section of the southland. Whether justi-fled or not, trouble is to be expected to arise from such games when participated in by both white and Negroes. It is common knowledge that much less is required on the part of a Negro to bring about serious trouble with a white man than would be as between two white men or two Negroes. Under the uncontro-verted evidence we feel that we are justified in holding that Clarence Williams received his fatal injuries while in the course of his employment for Trotti & Thomson, Inc., and that they arose out of such employment, Hartford Accident & Indemnity Co. v. Cardillo et al., supra; Southern Surety Co. v. Shook, Tex.Civ.App., 44 S.W.2d 425; Cassell v. U. S. Fidelity & Guaranty Co., 115 Tex. 371, 283 S.W. 127, 46 A.L.R. 1137.
By appellant’s second point it complains of the action of the trial court in 'refusing to peremptorily instruct the jury to return a verdict for appellant, contending that the evidence established, as a matter of law, that there was no valid existing common law marriage between the appellee and the deceased. We will not undertake to set out the testimony which we are convinced was sufficient to support the jury’s finding to the effect that the claimant was the common law wife of the deceased. The evidence was sufficient to establish every element of the common law marriage between these parties in either the year of 1932 or 1933 which continued down until the death of Clarence Williams,
gy point three appellant complains of the refusal of the trial court to submit certain requested Special Issues raising the right of self defense upon the part of Bennie Thornton against the attack of Clarence Williams when such was raised by the testimony. These issues inquired whether or not Thornton reasonably believed 'from the acts and conduct of Williams that Williams was about to attack him and whether or not it reasonably appeared to Thornton that bodily injury was about to be inflicted upon him by Williams, and if the jury so found whether or not Thornton acted on a reasonable apprehension or fear that Williams was about to inflict injury upon him. We see no merit in these points. Although the evidence was sufficient to raise the issue that Thornton struck the deceased because he believed that the deceased was in the act of making an assault upon him, wfe are unable to perceive how the state of Thornton’s mind could affect the right of appellee to recover; the controlling issue being whether or not the deceased was in fact attempting to unlawfully injure Bennie Thornton. This issue having been submitted to Ae jury and found in favor of the claimant, what Thornton reasonably believed that Williams was in the act of doing is immaterial.
Am other things the trial •court instructed the jury as follows: “You are instructed that m passing on the ques’tion of whether the employee received an injury caused by the employee’s willful intention and attempt to unlawfully injure some other .person that no verbal provocation justifies an assault and battery.” By appellant’s fourth point they complain of the action of the trial court in overruling its exceptions to the phrase “no verbal provocation ■ justified an assault and battery” as being a comment on the weight of the evidence and in effect charged the
Appellant’s remaining Points of Error contend that the findings of the jury to Special Issues Nos. 4, 6, 11 and 12 are indirect and„irreconcilable with the jury’s finding to Special Issue No. 3, and, further, that the jury’s finding to Special Issue No. 6 is in conflict with the jury’s finding to Special Issu'e No. 1, and therefore no judgment could rightfully be entered upon, such verdict. The jury’s finding to Special Issue Ño. -1 is to the effect that Clarénce Williams, deceased, was an employee of Trotti & Thomson, Inc., in Orange County on or about October 23, 1947, at the time and place in question described, and to No. 3 that the fatal injuries sustained by Clarence Williams, deceased, on or about October 23, 1947, were injuries sustained in the, course of his employment as an employee of Trotti & Thomson, Inc. If we are correct in holding that the trial court should ' not have submitted Issues Nos. 4, 6; 11 and 12, and was authorized to disregard same, his act in so doing rqmoved any conflict that, might have existed, leaving Special Issues 1 and 3, and the jury’s answers thereto, in full force and effect. From what we have said it follows that we are of the opinion that no error is shown requiring a reversal of the judgment of the trial court; there-' fore the same is affirmed.