*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
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