*1 y. INDEMNITY CO. AMERICAN DINKINS Tex.l J.w.) (211 be, pensation Law, pt. 1, purported issued, B. to the A. as that term is defined were by 1, pt. section by 2. it as- and were Grain Crouch definitions, security [Ed. Note.—For other see Words signed for the draft bank as Phrases, Series, and of First and Second Course appellant. bank was signatures drawn on the Employment.] guarantor at- of therefore lading. In it this suit of to the bills tached &wkey;>348 2. Master and Servant —Workmen’s appellant Compensation to show that devolves Law —Instructions. forwarding accepting bank, the bills Employers’ Liability The terms of the negli- degree guilty Compensation lading, of that of Workmen’s strued are should con- Law liberality they forgery utmost of which failing gence detect capable. legally responsible legally it make record therefrom. The resulted loss which &wkey;>375(2)— 3. Master Servant Work- transaction the time of this shows that Compensation Employ- men’s —“Course oe standing the A. B. Crouch the commercial ment.” good; had done Injuries deceased, Grain three-quar- buying selling ters of a em- business mile where was extensive grain, ployed regis- engineer, after he had many electric transactions of a similar day tered out for started home to through the been conducted nature had rest, did not occur secure while was up nothing bank; had oc- employ- in the furtherance of the affairs suspicion of fraud or dis- arouse curred to Liability er,, Employers’ within and Workmen’s dealings honesty of the A. B. Crouch in the defining Compensation Law, pt. 2, 1,§ Company. There was no evidence Grain phrase “injury sustained in the course of em- accepted ployment.” those bills of bank official the lading railway signature knew &wkey;»402 4. Master and Servant —Workmen’s forged. agent The ev- name had been whose Compensation —Refusal to Find Undis- signature further shows puted idence Facts. frequently signed agent a subor- Employers’ Liability In suit under employé. presentation dinate Compensation held, Law, Workmen’s under the lading undisputed evidence, A. B. Grain Crouch bills of that court erred in refus- ing representation injured a fact that to find as employq was in effect punched after he had he had been relieved for the the time clock and after genuine and bore bank that working day. signature authorized to issue them. of one guilty bank official was To hold that negligence &wkey;>402 5. Master Servant —Workmen’s failing truth of Compensation to Find Undis- —Refusal puted respectable representation, made Facts. inquiries push patron, further Employers’ Liability still In suit under Compensation think, requiring greater degree Law, held, Workmen’s under the undisputed evidence, refusing that court erred diligence than that exacted law. There to find occurred one of the nothing lading in the bills of was transaction that picion public roads, main which was create calculated to sus- leading ployer. plant to and from the of the em- dishonesty. We therefore adhere original .our conclusion that the evidence <&wkey;402 present negli- 6. Master and Servant an issue of —Workmen’s was insufficient to Compensation —Burden of Proof. gence, and the motion is overruled. Parties who base their Compensation the Workmen’s Law must show that the terms providing are entitled to within part act, view § par- rights that the and liabilities of provisions ties shall be determined DINKINS. INDEMNITY CO. v. the act. 449.) (No. >&wkey;371 7. Master Servant —Workmen’s Appeals Compensation jury— (Court of Texas. Beaumont. Civil In Received in the April 15, Findings Employment.” Additional 1919. “Course of Fact, April 30, 1919.) “injury To come the term within received in employment,” the course of as defined Work- <&wkey;375(2) and Servant Master Law, pt. 2, 1, —Work- men’s § must be “Course, op Employ- men’s — injury originated that the shown and, further, ment.” that it was received alleging deceased, employed Petition as while furtherance the affairs engineer, registered employer. an electric out for the Of gate, and started for entrance home to <&wkey;375(l) 8. Master Servant rest, gotten distance, and had secure when he was struck murrable a short —Work- Compensation — Relation men’s ployer of Em- automobile, was de- Employé —Termination. because it showed was not Although employment,” employé’s sustained in the “course of with- Employers’ Liability and Workmen’s Com- continue for an interval after he has ceased Digests topic Key-Numbered eases see same KEY-NUMBER in all and Indexes ®croFor *2 211 SOUTHWESTERN REPORTER n 950 beyond finery working, inclosed, employés were re- there must be a line and all continue, liability employer cannot and quired refinery enter and leave drawn in that line is-to be big gate, entrance where a watchman sta- each case is to selves. determined them- be tioned, out, let them in and and where employés punched and in as entered punched refinery; left the Court, Appeal from District Jefferson the road to the was laid out and McDowell, County; Judge. E. A. county built Jefferson at the instance of refinery, Mag- the owners of the and that the Dinkins, and A. P. for herself Suit Mrs. Company, nolia Petroleum in addition to its children, as next for her two minor friend bridge purposes, tax for road Dinkins, and contributed Dinkins Emma Marie Jack both material labor in the Indemnity construction of Company, against American road; only paved Employers’ said that said road is the compensation under recover refinery, Compensation Liability Judgment or shelled road to the Daw. and Workmen’s exclusively ap- plaintiffs, defendant was the road used its' em- for peals. judgment Reversed, ployes, automobiles, rendered for who ride bi- cycles, motorcycles, appellant. pro- and is Magnolia vided and maintained Pe- Lipscomb, all Sam C. Minor Minor and & Company troleum for use of its Beaumont, appellant. for going coming to and from their work at the Beaumont, ap- Harrison, Jas. A. refinery; coming that in pellees. passed their work the met and each great numbers, employés, other in especially BROOKE, This was instituted J. suit changing those 12 shifts at o’clock and as next herself Mrs. A. P. night, subjected dangers using at said road not at children, Dink- minor Jack friend for her two- applicable general public Dinkins, against the ins Emma Marie large. Indemnity Company to recover American workmen’s alleged September is further that on compensation provi- under the 20th, night, at about o’clockat A. P. Dink- Liability Employers’ and Work- sions ins, deceased, punched day out for the at of Tex- Law of the State men’s refinery gate, required do, got as he was chapter p. as, Gen- embodied in motorcycle, on his and started for home to (Vernon’s Ann. Civ. Laws St. eral refreshment, secure could needed rest so he 91). Supp. 1918, 5246—1 to arts. 5246— pursue day, his labors the next and was .alleged that is- Plaintiffs defendant riding paved road, on and said Magnolia policy insurance to sued a gotten had a short distance from the Company, insuring employés Petroleum work- gate, struck he was an automobile Magnolia refinery ing against Beaumont at at on said and sustained injuries resulting in death and re- death; which resulted that the automobile course em- ceived and sustained which struck Dinkins was driven policy ployment, that the so issued was employé Ellis, Magnolia Frank Petroleum aii compen- liability pay to insure the Company, who was on his Employers’ provided said sation for in Lia- work; plaintiffs are the sole and exclu- Act; bility Mag- that the Dinkins, sive beneficiaries of A. P. deceased. Company employed nolia Petroleum more alleged Plaintiffs further that the Industrial persons, 1,500 and had than insured its em- Texas, upon application Accident Board of ployés demnity defendant, American In- plaintiffs act, under said Company; P. Dinkins on A. fully acquitted discharged 'and the defendant 30, 1917, employé September liability on from all account of the death of Magnolia Company Petroleum electri- Dinkins, May A. P. and this suit was filed engineer Beaumont, cal Tex., 13, 1918, set aside the award for In- said continuously in the serv- had dustrial Accident Board and recover Magnolia Company ice'of Petroleum said compensation provided for in the act. capacity years; such several re- duties plaintiffs’ petition the To defendant filed night, quired him work until 12 o’clock at general special exceptions demurrer and go refinery, leave at which time he would to general By special and a denial. answer de- refreshment, re- his home for rest and fendant admitted that it was insurer for the duties; turn the next continue his Magnolia Company, alleged as above P. that A. Dinkins was 1,500 said, employed men at said refin- work or for the Pe- ery, shifts, making same in injury, and worked three at the time of troleum and hours; every shifts men in when the said Dinkins was not under that the going out, men performing one shift next was not control and serv- in, coming shift would and these em- ice for his jury, the time the in- ployés passed met and each and that said did not have to refinery ; originate in, with, the re- nor ’do work or busi- INDEMNITY CO. v. DINKINS !.W.) (211 employer, us was not received the ness of liis engineer”; excluding about electrical the idea thus employ- that his duties him as an the furtherance of the affairs go plant any part ; on a outside of er own, mission of that said Dinkins from his of em- work. far removed occurred; 1, part 1, Employers’ ployment, Section Lia- when said *3 bility upon Compensation specially or of denied that the road street Workmen’s Law paid injured any way 1917, provides by was in Dinkins was “injuries controlled Petroleum Com- insurer in the sustained pany; further, denied, employment”; 1, part course of 2, jury that the road and section injured Act, p. 292, phrase, of the at was that “in- defines provided Mag- employment,” sustained maintained in the of course as follows: nolia of the use employés; its and further denied that em- ‘injury “The term in the course of ployés Magnolia of were employment,’ act, in shall in- used this required par- to use said road or other clude: coming going to and from in ticular “(1) injury God,” An caused the act of work, hand, that, em- other said on the but etc. “(2) ployes choose of several An free to caused an act of a third person injure employé intended to because highways to in of travel personal him,” of reasons to etc. spe- refinery. further from Defendant said “(3) An received while a state of in- cially of said road that the terminus denied toxication. of the was at the employé’s “(4) An caused will- alleged of attempt injure himself, ful intention and to or unlawfully refinery, injure person, jury of west some other mile was one-half injuries every corporate include all other of shall character kind of limits on a within having originating to do with Beaumont, Tex., that said road consti- work, profession business, in the trade or of the part highways main one of the tuted a of engaged employé an while Orange, Tex. Beaumont in or about the business of his furtherance affairs or August 5, 1918, Judgment rendered upon employer, whether $4,800; plaintiffs for motion for a favor of employer’s premises elsewhere.” General August 6, 1918; filed p. new trial was Laws Sep- new trial was filed motion for amended overruling 4, 1918, in the order tember main this case wheth- days granted 90 after ad- same defendant injuries or not er Dinkins sustained journment pre- term within which to employment,” “course of as that term is de- pare of file a statement bills Employers’ Liability fined Texas Act. exception. of The term at which this case are of it [2] We is the September 28, 1918; expired was tried tran- duty give this of court to' terms of script of facts and statement were filed liberality act the utmost of which properly this cause December legally capable, that the benef are end for review. court before the purposes of the act be effectuated. icent assignment first [1] In error is over However, pur must remember we complained the trial court erred Law, pose the Workmen’s general ruling demurrer in its defendant’s act, preamble was to set out as make petition. original assignment Under compensa more certain the proposition to the effect that— employés in cases where tion petition on its face shows that Dinkins “The ordinarily exist at common an action would injury in did not sustain employment, but, course of things, exclusion, among law, hand, on the other it affirma- An risk. eminent assumed the doctrine tively injured that he shows after he had authority legislation as the calls such Work employé.” severed his relation “jus attempt at men’s Law law,” original plaintiffs’ this reason are quote petition without and for tice We opinion that, common-law since as follows: abrogated liability have been rules cases of September 30, 1917, at about “On or about greater nature, there is all the night, Dinkins, deceased, A. P. 12 o’clock punched fol should endeavor to reason court refinery gate, for the spirit got the statute. do, motorcycle, low on his as he was Legis- Legislature, unlike the secure Texas for home to needed rest and started pursue refreshment, states, incorporated so he could his labors the of other has latures riding day, pav- next and was definitions which must be tak- the act certain gotten a short ed refinery gate, mobile and had distance from the pro- applying the into consideration when en visions of facts. struck he was auto- to an established set of law traveling on said road.” by plain defines unmistakable “injury 5, plaintiffs Further, paragraph allege received in terms words by stipulating employment,” employé course of “the said REPORTER 211 SOUTHWESTERN inju- phrase tiie “all other must be incidental to ness, shall include the character the busi- independent having and not relation every ries kind character been, master servant. It need not have fore- trade, with, originating in do expected, seen or but after the event it must profession employer, receiv- business appear origin to have had in a risk con- or about ed while nected from that flowed of the affairs or business the furtherance consequence.” source a rational employer’s employer, whether premises or elsewhere.” above-quoted language was used Dinkins did not This record shows that dealing with the construction in or about receive given language “arising the furtherance of the affairs of the Petroleum employment,” of and in the course of with- hand, Company, but, on the other provided out the aid of a definition plainly he was bent his own shows act, and, quoted the Texas passage language by as seen from the refreshment, rest and and that at *4 by above, attempting modify the exercising injury employer of the the clearly defining it, appears it him; and, over in addition control whatever spirit requires the law Texas this, petition clearly the shows that the in- to jury emidoyé actually the be must about originate in the It was did not work. of the furtherance his master’s business injury might person happen casualty occurs; when the it otherwise any street, regardless employment. regarded simply will be happy any one of as those un- any language have been unable to find We might happen accidents as such states, laws other similar the of the us, responsibility of for which language quoted, which defines what shall be employer. cannot be laid at of regarded the door “injury as an received in the course injury by Was the employment.’” sustained Legislature Dinkins one of of Texas The originated employer, which and adopt judicial the work of his did not intend to tion other construc- placed upon by also sustained while he was en- terms of acts gaged proved states, or about the furtherance of af- and this is the fact employer? incorporated so, of fairs If then there is what the Texas act employer perform- business of ing? definition of that term. was he judge proceeding If As said a learned one is case of to his home Guaranty refreshment, Ocean & needed rest Accident Co. v. In- he The can be re- Commission, garded 317, engaged dustrial Accident 173 Cal. of furtherance 1042, 1917B, employer? 159 Pac. L. R. A. 336: the affairs or business If of so, by parity reasoning then of the act should principles, “Under familiar statute be construed to cover judicial received has which received construction employé adopted while of he is on his courts by one is vacation. state is and re-enacted It state, adopted plain another it is so injury and re-enacted sustained his after put upon in consonance with the construction he had abandoned his duties involved which sovereignty. it common sense of courts the first The employer. of furtherance the affairs of the rule of construction is Nearly all the authorities which apparent nothing support so that it in its needs dealing been to find able are those with laws suggestion that, more than the obvious if the provide compensation which when the design later did lawmakers not the con- jury put upon any given “arises out of language and in the struction should obtain, modify change employment” ; that course and we believe these language express their different intent.” comprehensive words are more is there per- more latitude for construction than is Legislature fit Texas has seen to modi- act, mitted the definition in the Texas fy language compensation of our act following quotation note the on from Honnold defining regarded shall what be “an Compensation, p. Workmen’s 320: injury employment” received in course of by defining “originate “According it as one which language acts, must usual work,” to warrant addition received be in injury workman, of a death must “while ‘arising be out and in one the course’ of his the furtherance the affairs or business of employment. phrase is used in the same employer, employer’s whether England many sense in the acts and of premises or elsewhere.” and, though literary states, well its construction is opinion, In our decisions of application settled, particular eases great not of states are service in constru- given rise has to differences not eas- ing ily Attempts rules the Texas Workmen’s Act. harmonized. of the courts to general may general formulate But it be well to show relative to the distinc- trend tion between the terms ‘out of’ In authorities. the case of Federal Rub- entirely of’ not ‘course successful. Havolic, 341, v. ber Co. 143, 162 Wis. 156 N. W. however, agree, All tended received are that the terms not in- 968, 1916D, following L. R. A. lan- synonymous. injury may An be guage is used: in the course of and still danger peculiar “The causative must be have no casual connection with it so that it be said to can neighborhood. employment.” and not common arise out Brew- INDEMNITY v. CO. DINKINS (211 S.W.) Ct., 176, ing Co. Dist. Minn. N. v. 151 W. accident or is received when it oc- so impossible, difficult, doing if 912. it is “But not curs when he is what man in like em- injury arising of, ployment may reasonably conceive of an also in the course out do within a dur- of, employment. ing employed, place is so and at a “Many of, may reasonably during accidents in the course occur time. of, employment; employment’ not out but I am unable ‘Course of acts in which includes of, acquiesced, though they to think of arise out the not has are of, employment.” performance also in the course done a strict of the em-' Oakley, etc., Co., ployé’s 4 B. Farwell J. N. Leach v. duties.” W. C. C. 98. Case, In the McNicols Mass. impossible “I it is to have think an accident 1916A, employment] N. L. R. A. arise E. out -which is not also [the employment; in the course of con- but the “in- was whether received an deceased quite as, instance, possible, verse arising jury in the course of and lunatic, if a workman were shot or struck employment,” meaning within the act. by lightning, at the moment said: great many cases, however, his work. In phrases recovery, separate “In order that two do not admit of consid- eration, present must both arise re- and also be of these cases. employment. ceived alone is that an employment course of Neither If this accident took the course of the * * * enough. indubitably say It is ‘in workman’s arose out of that also sufficient to employment. not, course of’ If not.” Anderson, when it comes while v. 4 B. the workman McLauchlan W. C. C. doing duty employed per- importance distinguishing which he is “The between *5 employment rep- form. It arises ‘out these of’ the when terms arises from the fact that each ** * apparent to, there is to the rational an element mind resents izing, essential but not author- compensation a causal connection the between conditions un- of the without presence represented by performed der the which work of the is element the other. * * * resulting injury.. words, though injury In But it ex- even the occurred injury fairly employment, cludes an the of which cannot in arise course if it not traced the did employment contributing proximate employment to the as a there be no out can and, recovery; employment, though cause the workman apart which comes from a hazard to which even it arose out the of equally exposed if would have been it ‘in did not arise the of course employment. employment’ recovery. from the The causative there can be no danger peculiar work, point origin must to and not “The words ‘out of’ to the neighborhood. injury; common to the It be in- cause the stances under which the accident or must of the accident or the' ‘in words business, place, time, of cidental not servant. expected, to character of’ course to the and circum- independent of the relation of master takes place. descriptive It need not have been or former foreseen The words are of appear quality after it or but the event must the character of The accident. origin have had its in a latter risk connected words relate to with the circumstances under employment, quality and to that which an have flowed from accident of that character or consequence.” place. quality source as a rational takes The character of ac- conveyed cident, of,’ ‘out words Guaranty In the case of Ocean Accident & volves idea that the accident is some Board, supra, employment. Co. v. Industrial Accident a sense due to It must result reasonably employ- case, says: from a risk incident to the California the court Bryant 72], Law, ment.” v. Fissel N. [84 J. Stavely Ltd., Co., “In Walters v. & Iron Coal 86 Atl. 458. proceeding 4 B. W. C. C. his work a miner footpath prepared by his em- Honnold, 353, says: page Mr. ployers for their workmen’s convenience. He employment necessarily “The of term is not’ slipped injury. evi- There was during identical with the time are which services employers dence that knew the foot- that performed employer. But path not safe. The considered where, by employment, the terms of em- an of accident House Lords was: Did the ploys ready any is to be hour of the ‘arise arise out and did it night perform duties, certain fol- it does not employment’? in the of course It held ’ any low that accidental which he that was ‘no which evidence during receive of course the 24 hours is justified finding that accident arose out compensable. requisites To have all employment,’ it was declared to be compensation present, is essential he it that injured upon employé immaterial be, duty fact, discharging some the course prepared footpath em- this ployers, for his use his employment. employment term of merely the man to his ‘since spent * * * includes time em- employment.’ ployer’s business, and a reasonable latitude very sense, course, it is “In the broadest business, acts not furtherance of the but happens man true who is an which to a during working done time.” place employment his is on to his injury ‘growing of and an incidental says: page On lie 346 further necessary part employment,’ since a his right employé go employment “It to the shall is essential place it is to shall have been from labor. But received and return employment; not course award is workman’s be noted founded out of doing injury grows upon shall have been while he was the fact that to reasonably employment. An to his work. incidental some act incident and is It REPORTER 211 SOUTHWESTERN (ever goes gets he is man relief the service comes he the fact that is founded ready that he injury grows rendering for work relieves man. The man time employment. There- relieves do free to whatever he wants to the of and is incidental place punches gate. to the employé going after he out at from his Some fore service, working any change rendering men don’t have to their sir; when, Yes, only clothes begins to work. on 12 I have worked such service to render morning. place some instrumen- arriving said, his em- shift from At has o’clock man lieves the relief men that proceeds the name of Robins re ployment, H. T. to use o’clock; tality diately provided, he imme- me—at he is one of of which means perform position places relieves me. When I finish in a himself my always go home; work and am I relieved I tasks.” go big gate, however-,first, punch out, says: authority This further before I leave for home. is between three and five hundred from feet where I us, we think before “With authorities these punch work to the where we out.” governing principles are all decisions the not first of these discernment. difficult testified; He also from benefits that there are excluded is the act all those Bly stops “I work the hour. time I oc- accidental refinery. Yes, sir; leave the I do the same returning employé going to or cur while the kind work Blr. Dinkins does. I have never in this re- it matters not performed leum consider Blagnolia duties for the Petro- pub- journey spect him over takes whether yards. outside of the I do ways.” private roads or lic myself company aft- gate. Bly stops. Ier leave the The com- quotations are cases the above These pany I does not have me control over after regard- argumentative, and cannot refinery gate get I leave the until back the next at issue on the authoritative ed this dicating * * * day. day. eight I work hours weight case, as in- their night Mr. I killed think I probably intention what was twelve, him about ten relieved I and come minutes enacting the Workmen’s of the lawmakers just him; think he left as soon as I relieved several other Law of I believe 12:25 when Blr. Jones up and me that Blr. had states. told to been given killed.” best consideration our We have *6 proposition have utilized We before us. the Courtenay Marshall, for witness defend- give dif- this that could proposition. all the time' ant, testified that when a man was relieved We perplexing ficult customary ordinary from his work at court the that the conclusion arrived at employers longer the his no exercised demurrer, and the should have any control over him whatever. do so. not to that it was error The court found in this case Din- pub- that complains assignment that [3] The second motorcycle operating kins was on a rendering judgment erred in trial court the against night, light, lic without a show the because evidence defendant law, consequently was in violation origi injury conclusively not did that the ed way. not, unreasonable Dinkins there- while occur it did not nate in the fore, have recovered under the rules laid engaged in or said A. P. Dinkins the about the furtherance states, down statutes an or busi of the affairs why this would be additional reason Company; Magnolia Petroleum ness decisions of garded not other states are to be re- plaintiffs were proposition that authority binding as in this state. undis because the to recover not entitled opinion It is our it was not the intention injury did puted that evidence showed lawmaking body of the Texas to include engaged in or not occur while injury such one under considera as affairs the furtherance about employer, tion. was no relation There of master and injury not did therefore duty servant at the time. There within the terms comé part to see that Dinkins reach one act. safety. person ed his home If a should set testi- for us to is useless It regarded performing be master, as a service mony trial that was adduced goes rest, why when he home to then say sufficient be ease. will regarded furthering should he not as be proven that he Wonder C. C. was worked employer’s eating business he is while place with around the same and, food; theory, on this should he be Mr. Dinkins. why injured, should he not be able to re fact, him, the man with and am cover? “In I worked are of We that the court err customary My Dinkins. road ed, Mr. complained of, relieved I rendering judg as was Madi that son avenue road. used against defendant, assign ment my Will that it was state things ment is all sustained. v. Walters at least 10 minutes to be at

custom Stavly 303; Co., &Coal Iron 4 B. C.W. C. go on, and me to I relieved Mr. of the time for Dinkins. Co., Leverone v. Travelers’ Ins. 219 Mass. night I relieved him on is a rule out there 349; 488, anty N. E. 107 Ocean Accident & Guar to relieve the man killed. It Board, you there; Co. v. Industrial get Accident make differ it don’t when 1917B, 11 and o’clock. When L. if is between Cal. 159 Pac. A. ence R. 336. court not dence shows that the said time of the the defendant of master garded because said that the jured pense in fore, it is plains with therefore,'without gate road at Madison street and extends and after he had been relieved ing day to the graded up taxes, tributed both found:. in and out. There is ployé. road used Magnolia which is cycles, bicycles, cles. nolia Petroleum which men’s lision finery to assignment find as a fact finding the death This is from this road leaves just quit work, cycle along son request the car enter and Dinkins, producing 'injuries torcycle; only suitable, report refreshment, “All The- third Having ^[4] find affairs street, assignment. said A. P. Dinkins where their reference The fourth Prank began erred after he had own, occurred on proposition refinery’s ,No. appellant Employers’ Liability and Workmen’s fit or suitable for of Dinkins leave exclusively by and Dinkins passed on Ellis collided work Grove a watchman work, within or business of his cannot, said road without needless of error. The work September 30, 1917, Ellis, in or about his duties as the court erred labor and material at its own ex- assignment appellant construction of this paved, and, in addition route Magnolia said road Law requested at the because and other to this rendering Ellis servant entrance Company, was on the street, at 12 o’clock that requested also assignment as a herein as set out automobiles and under this about the further a time home for needed rest and Answer: Madison riding occurred the same Act. Company punched A. P.A. coming only purview Beaumont-Port Arthur leading excepted. all the matter of and Burt assignment, Petroleum us in his automobile to P. Dinkins was the most stationed, by the defendant. complains assignments did not was on complained gate. vehicles, A. P. Dinkins home on his motor- one road to the re- automobiles, judgment intended to cover court refused the comment, Dinkins, which resulted in to add lights undisputed evi- the trial court employer at the avenue, at a time were night. furtherance the time clock to the assignment Company con- He further to motorcycle This road is the relation refusing big same avenue, paved error com month of the fourth In law, exist, and the Work- to direct, *7 required a mission on his mo- night. the work go Company; to anything INDEMNITY who had This col- entrance let them against of, between sustain hereto- an em- regular motor- is the of the when Madi- when Mag- wanted road. vehi- shift (211 S.W.) we, and re- in He to utes after Brooklyn I find as a fact that said road out from work Magnolia of work, not but the same danger were from 12 from follows: I of the men the hours that I ing night position each other as within the that men would ernoon, 12 at over and had to had to each. was between three of to leave at ber relieve him at 12 utes beforehand. When a man dred (at Magnolia refinery) as ‘shift foreman.’ shift— general They man, whatever.” pump his clothes and announced gate one man to office, change would be testified: were clothes' until after “At say “Q. “Just C. P. And further: Beaumont, going September, him, my judgment practically only tacitly man light CO. eight employed charge they night. and ‘shift foreman’ I mean that I am foreman What quit to and hazard zone of the and such like that. During punch register. their clothes and come and with that main entrance to to, that fifteen eight locked, v. DINKINS Of course September 30, 1917, something killed at such September they leaving Scruggs danger operate could be when up for the present Dinkins had his work are free to soon as they working go or was the rule he wasn’t There is three shifts of of one Irving they to out.” His hours o’clock on the on said the month of on shift where A. P. testified down he they hundrd invited them to use said there was between twelve hun- but was watched night them; work; There of collisions and morning instructed me to háve them before the other had company refinery, relieved four o’clock, used got testified I am Prank relief man like one yards hundred and Company during streets, the men Company living my.orders his relief man came eight-hour Mr. could take to the permitted them to do engine out he is a clock there and he go men my department during left there is I look after them dur- that Dinkins’ work; had three shifts: refinery grounds, employed eight Ellis until four in turned returning and possibly of those the afternoon until get while work. and about where hundred you Dinkins was run punch gate ready employed I do now. When night refinery.” I was —he September Continuing, that out. The went for the come from the shift. On the being held the foremen refinery gate. plaintiffs no restriction the work to four going subjected so, they please. supposed During down a few min- off of the went to the report, eight roads within out at the change on a the month furnishes two car—that a watch- morning, supposed and that hundred Septem- changed in and duties water work? hours about there shift. road, there their same min- with they over gate city aft- he to I REPORTER SOUTHWESTERN work, in more relief man came requested roads Orange coming fact of jured a mile west of street, wherever punch big gate. ange, Texas, accepted woods fact was the to the resident there are sons who work for Company'in ant I have stated of Petroleum instructions to mitted to from any particular yards.” and could required or control of fact whatever follows: lation of ed the street the cinder through how the defendant. should error. is no out, ror will in the course cludes, (a) (b) D. The Prom our ^[5] take the finding P.A. a mile west of requested, plant injured finding that ‘the correctly he was to come put and the “The court erred “The court erred W. there; should and that out, at a on out Buford evidence record .from which was as a taken worked, punch Dinkins occurred on be considered on he Webster several No. the road go car, the work to the over Company,’ fifth and sixth go path take job paved Prom point course of his was road that pleased. at a hazard zone his street matter of defendant.” their going job. neither heretofore, court, inspection made the have made this where shows or reflects that Dinkins was over, him to what road road. He had out, fact section of any particular The and told not the The court made Magnolia contrary requested by go other change more than work, with reference He had testified as follows: his failure to after to and map the street something which resulted down under Beaumont, Texas, he street. employés the different same part up He was runs south in pumphouse, more ways refinery, on Madison clothes, law, plant he was at only him that pleased. together, go they finding requested after introduced big which same refusing refusing Magnolia Beaumont, and that he Petroleum assignments of er being finding of the Beaumont- employment. The from coming him; punched injury, and from to wait than he should road clothes, employed Beaumont. gate, three-fourths of had road, defendant.” like two that one of the main conveyance car in finding being circumstances, A. P. Dinkins record there his own he was matter going he was no discretion there was three-fourths He was liberty to find track, in the death he was do so or roads that where from their above set highway work. go out at wash until find Company embodied Petroleum go hundred measured the re- finding take defend- are as to and to Or- to killed No. 4 of his ready me or lower down than away refinery gate con- kill- as a as a fact take also take per- per- evidence. Mr. about one not marked ‘Broken up, the those no As streets that no go go that so Madison material, or labor on Madison street. proposition some expended about controls Magnolia did is about scnts the they that nolia of I know the Yes, sir; blocks nished by has never the cinity reason the the main traveled ty continuation of the other street out there. The ing son avenue was built. trol I have not been here Madison avenue to the keep up from streets saw was a about. nolia Petroleum earth roads’ * * * use over also state Siat “The “I “I am C. C. L. Scherer upkeep dusty you furnish the oil one time to oil city that time the and which has agreement of that street in there, scene of the point Orange county over Madison avenue that I know state that they exercise no control they that I made Poplar picked shelled Madison avenue instead of some kind of Marshall, four I Orange county. between county lately, why know good, plain, open limits. Madison avenue. Neither has the They street; that end Madison looked down that leads from Beaumont to anything conditions of the I was that of that road portion * * * any money (in of the accident Petroleum hundred expended any money and the traveled over this years ago material I couldn’t city engineer you the street are of. So could material on has not county but I distance from feet. Beaumont) have not between the on the refinery. I Irving good I do living map neither has it furnished put tree scene see measured the if secretary well-defined accident highway of the street testified: about. The shell was fur- n over to city hardly Orange county already Prom any repairs we would furnish the oil and is still that I know of believe, marked on it on the roads. the last twelve is a far ground. paid anything in Beaumont when Madi- avenue are Company ¾ I could tell, testified: whatever whatever * * * does the seventy-five Orange road, paid anything those looked down map correctly as I road. one end thirteen portion city, travel it. from Jefferson coun- is about well city roads out in Yes, sir; Sherman unless it was to be exercised Beaumont. you however, It county Irving streets; and Grove street accident,’ I have road, streets that shelled, length mile, know, distance point, street, showed that defined. are to be made * * * So far as the over work; exhibit city in introduced that road.” tell years. of the main anything yards 2,800 leads from and I is the one and Grant map years concerned, it at that owns and helping improving Magnolia They put street. furnished that road them also been limits to Orange.” which is anything you of those and will has not made a I think that for the county. money, myself. it was I have *8 and is before Those repre- Mag- Mag- ‘good Dur- they feet. is a way why lead con- will vi- I locality time when carhouse he he was when where doing nothing was not under employer, own, going called ance of his must time, jury originated But ceived employer. 283), termined We made gave act. on the Workmen’s 1, pp. based ceived so tion Law the court erred finding from their work. We that Madison street was finding or business of pany. found that a matter Madison in or about troleum clusively “But “Whenever such suit is Honnold on Workmen’s In [7] To The last Section ^[6] necessary, find, 148 W. Orange, liability conclusion of law embodied employs work, and, a short distance from where he left while the it to them.” part the court erred be shown injured, but the case provides: Appellant requested any duty 167, 346, his assignment, him, the furtherance of the affairs of the appellees it is shown here that foregoing N. to that effect. come we had street, where the must show that fact findings work was where and as he the course of (General If it be conceded that and had selected his own route. employer’s assignment sphere part 2, he was then 950 feet law that said within charge went employs so testimony within the provisions of this act.” and 358. base P.A. Dinkins while our nothing main road further, furtherance of the requested, facts are on his within the it is said: Hills the line of his parties direction or defendant away requested. scope for that Laws refusing their suspended, turned Workmen’s opinion, fact AMERICAN ' going business. refused are of injury originated v. It refutes of error to do refusing employer’s premises ^undisputed Compensation, brought, thereto the road used ex- the court make of his upon, term employment Blair, employment,” court refused to ' injury occurred, pleased. Though by public and should have what deceased left the from Beaumont to and purposes oil; excepted. terms it would still to make this to show that with it at all. control of his was the further that he was are entitled at the time of it was re where his work in the fore to make a “injury apparently, shall be de- Act Compensa- c. away 182 Mich. to find complains INDEMNITY CO. v. DINKINS was not engaged the in affairs merely gone alone, in or rights court Com- at a idea vol. (211 S.W.) Pe- re wards his p. employment. Port Arthur zone tached). from their work. The fourths of a mile from lation of cause and effect between the ac- lead the course of no had no laid occurred on the or he could day, place cident and the of his tion of master and servant had ended for the tation of which Dinkins was not place from their work. of law ever, was within a few hundred feet He had traveled left ment, scope onto a case, custom of ing available to him R. in shown that which ment, they would be at most licensees. In Cat the statement of facts trolling importance. At the same distance de vate ment day’s passing engine deceased some other own route. and was on his on v. Summerlee ceased was arise out of and in the course of the ways There seems to be Under In the instant going duty employer, 762, work, time, and left fulfilled his work servant had by appellees working, killed railway aof work, were in the claimant has failed to together of his many they might wagon duty his employment, to fulfill having it was held that locality by employés going to and This record discloses that had left the laborer under the employer. home, injured, was knocked down and killed there He of the men the time no to fulfill towards refinery,” route, track *9 conclusion, and went employment, while undisputed testimony employment. the accident had left the there besides the way time of what work fulfilled his work and left rhe duties & M. & S. could have as will along from their habit ended for the doing who, killed was another gone -belonging and was on his to travel along home. He had at the time from the walking yards case the as there were several (See map is termed “the hazard direction or control of I. The relation of master and had selected his sphere at the conclusion of his court the quite place master, because the collision away, safe taken, employed any duty support shows, arose nothing using which being from where he had duty right fact accident had ceased a street gone home along work, footpath done. A fair Co., where he did place a lot to his of his him. The rela and was three- show Act deceased had party and his master done.’ course of his and safe that Dinkins the deceased herewith at- day, to fulfill injury, a conclusion paved to his home 39 Scotch L. within the at the same not of con in the line the railroad principally said: when it way. of and In can of stress interpre- employer, such re- car. ” he hav- employ- injured in this not, did not employ employ-’ home. place how- have ‘The way Mr. also The pri to- As it,

211 SOUTHWESTERN REPORTER time garded insurance issued makes the at 5 o’clock. There was no legal right liability pany, issue Act, and, should to and from his work. found in the American thority employer law with Texas cause been of sistibly statement appellant date was Company, Appeals, Petroleum of his beyond “although determining continue tually that this cause must said to have arisen out cannot be determined believe this HIGHTOWER, ^[8] (2) We desire to From what we time when (3) (1) control the said facts able argument judgment assignment Employers’ carried line an accident tlie Madison street After That On On policies insuring in addition ceased employment.” Additional Employers’ leave, this is such a which the to the conclusion to write insurance policy continue, in this in his great September the American September SO, 1917, to the and as Indemnity employ dangerous Company following a to be drawn he can no injuries the course dictate as working, rendered insure its exhaustive brief filed policy Law of manner nor was there of insurance said facts, of. therefor, careful said case under appellee’s express employment is sustained. assistance case, reading disposition Liability interval after he happening such C. J. The Court' of Civil counsel, and request to the facts case, Findings liability Liability ( date, of insurance under said necessarily findings and There must resulting in employs yet consideration Texas, Indemnity. American our longer case, Magnolia which written, road could be Company which he went to and in employment may morning following in we are appellant. there must subscriber under Company and Workmen’s themselves. against personal Petroleum Com- appreciation eminent thereunder of Fact. where each case is to attempt by under said lia- of this of fact Law court, A. P. Dinkins tbe Company. prior thereto, carefully any attempt had the au- has, such set him can be 150 Indemnity said to be from 4 it follows Madison afternoon under the were Company. policy be a line therefore Magnolia death, reversed, led INDEMNITY had the appellee Dinkins A. P. on that has to wit: covered was no at Beaumont indeed, writer, night case. closely of all course work where and come irre (211 1 tlie the Dinkins. We re- ac 4 of collision. if ment, Í.W.) bility law, including valid, three shifts Petroleum A. P. Dinkins was in paved pany cycles refinery and on leading leading from their work employés avenue to the graded Arthur road. had the mile vehicles. P.A. Dinkins came to to the automobiles, motorcycles, other by on said work, work widow, children, road at Madison regular taxes, this road leaves a watchman (6) (4) (5) Said per its a mile from refinery sole refinery quit accidentally collided; quite CO. DINKINS motorcycle at 12 o’clock On Said A. P. own at and was to 8 in the contributed both labor and while and in force on vehicles, cent, the afternoon paved refinery employés length, Mrs. A. up road in the afternoon until 12 at and to said and from their *10 y. until work about premises. September Frank Ellis was Jack average weekly wages street, at said expense a number came and went Company off work and 150 motorcyles. gate, Port Arthur shift legal per day, in his automobile This is the Said Frank stationed n .for 4 in the let was killed was on the 1,600 persons, traveling refinery gate. This road is and is the P. on said road paved, and, said to secure refinery 9f Dinkins, deceased, in automobiles and Grove street, beneficiaries his Magnolia them in and in the construction of this refinery there are Dinkins, and,two employés morning, big o’clock' at the sum of $28.75. A. P. employed There 30, 1917, Beaumont-Port Dinkins and persons day, registered entrance night. until work afternoon, All September Magnolia Magnolia to enter and on said about three-fourths and and extends Dinkins, fit, gate road is as a result of street, Ellis was only shift shift which wit, from the gate rest and refresh- on employés Petroleum Com- from 8 of the in gate, in addition to were only in its night. Emma and September A. Dinkins and material road bicycles register that worked automobiles, from 12 at home paved to the suitable out, gate, paved of the said go P. road Petroleum report Petroleum at and entrance; said Ellis surviving aforesaid Magnolia 30, traveling involved, one operated refinery refinery leading left as Arthur at the on Marie riding About minor night. began night, on to roads legal, leave 1917, from Burt road used road Port 959 30, bi- *11 (Tes. REPORTER SOUTHWESTERN BROOKE, by leaving branching J. This suit institut'ed out or or streets Improvement city the Plouston Hot or its sub- Well Com Beaumont pany against Newton, refinery gate K. Port Emma John S. and the urbs between Arthur Purdy, Townes, trustee, E. and as for W. enjoin was the cancellation of the fore1 and to A. P. in which The accident public injured closure roads certain deed of trust and note on one occurred by Improve county, executed the Houston Hot Well three- and occurred of Jefferson Company by president refinery, ment to E. W. from the a mile fourths of Townes, trustee, employed. as for the use and benefit or the Newton, upon of Mrs. Emma K. acres survey K. Hamblen land out of the W. county, Tex., upon improve Harris consisting property other ments of a hotel and situated, having of trust were said deed HOT WELL v. HOUSTON al. et NEWTON given promissory to secure a note (No. 454.) CO. IMPROVEMENT $3,000 Houston sum of executed the Hot Well Appeals (Court Texas. Beaumont. May 17, of Civil Improvement Rehearing April 25, Denied 1919. Newton, payable K. Emma and to Mrs. May 1919.) April 10, 1916, with and due on or before rate of interest thereon from date at — — <&wkey;>484(l) CONTRACTS 1. CORPORATIONS cent, per per as 8 signed by The note was annum. Debt of Another. Purdy J. S. after Newton to by corporation Mrs. paper for The execution beyond corporate maturity thereof. of another the debt Say corpora- les’ Ann. powei's, St. alleged Civ. plaintiff in view of Vernon’s that it 1164, 1165. arts. tion, organized of the state under laws Texas, purpose of the erection Necessity for the Subrogation — <&wkey;41(5) 2. improvements building Pleading. repair and money loaning of available, and the accumulation for Subrogation, must be to be sale, purchase, purposes pleaded. for the said towns, property in of real and subdivision cities, Corporations &wkey;>309(2) Ad- 3. —Officers— suburbs, villages and their Money Corporation. vance of money loaning of for accumulation and nearly owner of all the shares Where the purpose. for that president corporation agreed of a one of any with the alleged purported plaintiff execu- create directors that would not against corporation, F. A. of trust liabilities the fact of said note and deed tion money corporation advanced president corporation, Connable, the of said corporation not make the liable therefor. delivery' to Mrs. Emma K. thereof alleged Newton, <&wkey;326 the same and also Bills and Notes —Covenants—Va- lidity Purdy K. Newton to September, 1916, of Debt. Mrs. Emma sold assigned Where note after sold on or about the 1st of dorsement on note “without recourse” and plaintiff maturity note. The of said cove, assignment containing written a further alleged of trust said note and deed assignor owner nant that F.,A. Connable, as said was executed assign, owing “and that sell and thereon now corporation, president without naming principal sum,” it, with in- by special authority agreement corporation, terest, and that the that no from the followed against assignor recourse was to be had as as- corpo- same were not the act and deed of ration, surety signor payment obliga- for the in furtherance and were not executed tion, express, implied, well there was corporation any purpose for which the warranty debt, in no which was wise im- created, note was without said paired signment. form of indorsement and as- plaintiff consideration, and that money pur- any of the never received had ported ' note, represented by said Court, Appeal from Harris Coun- District Purdy alleged J. said S. Ashe, also E. W. ty; Judge. E. Chas. ¿Townes, trustee, proceeding Improve- the Houston Hot Well Suit by said deed of the lien created foreclose against Newton, Emma K. ment corporation, the land trust Purdy, another, in which defendant J. S. J. ant injunction. for an asked Purdy against cross-action filed defend- S. appellant defendant John S. judg- Mrs. K. Erom Einma Newton. general Purdy demurrer answered Purdy, plaintiff for defendant ment expressly denial, that the note and denied appeals. Af- Emma K. Newton defendant vires, ultra and al- were acts of trust deed firmed. good given leged the note was consideration, Vinson, Á. R. the same Elkins & Wood and & W. P. valuable consideration, Hamblem, Houston, appellant. all of was executed Houston, appellees. Cole, corporation the benefit & had Cole Digests Indexes topic Key-Numbered oases see same KEY-NUMBER in all