*1 : "'were, we could in’ the absence not’ by any evidence Moore and Kirk et al. they upon discharged hold that the burden summary judg

them on their motion for

ment. stated, already

From what we have pleadings plaintiffs alleged facts

which if true would demonstrate that by judgment

were not bound in Cause 48,463-A. requi

No. This true the upon party

sites incumbent bound

judgment to obtain (in a review thereof equitable proceeding of Bill Re

view) apply. do not party One

suit judgment is not bound entered

upon it' option and has the vacating it

by direct proceedings or else to treat proceeding where void collateral in. might rights against by. be asserted Spencer,

reason of the same. Parker v. pleadings 155. The Tex. further injunctive

alleged cause of action for presented plaintiffs

relief and issues the litigated.

were entitled to have

Judgment the trial court is- reversed

and remanded.

BROUSSARD

BURTON CONST. & SHIPBUILDING CO., Inc. et al.

No. 3118. Appeals of Civil of Texas.

Court

Waco.

Feb.

Rehearing 11, 1954. Denied March *2 Tucker,

Orgain, Bell & D. F. Sanders Beaumont, Watson, ap- Alto V. .... pellant. Cecil, Marcus & 'Weller and Keith & Mehaffey, Beaumont, appellees. TIREY, Justice.

Appellant, plaintiff below, grounded his against suit Ship Construction &(cid:127) building Inc., hereinafter re Company, ferred to as on negligence, “Burton” claim ing that injuries he received his company while he anwas invitee, or, alternative, in the licensee,, injuries explosion resulting from an which occurred prem while he was on the ises, which resulted in the loss of vision eyes, injuries. Appellant both employee an denied that he was of Burton injured and the time was that was injured employ not in the course ment, alleged but he in the alternative a Texas against cause action Em Association, ployers Insurance hereinafter referred to as the “Carrier” under the Law, Compensation Workmen’s Vernon’s seq., et Ann.Civ.St. art. 8306 recover against the Carrier on the basis of total1 permanent disability, specifically alleging against that his cause of action the Carrier subject the' contention that an but on the (cid:127) contrary'he was an invitee. Plaintiff to trial original went on his alleged explosion petition and of, defendant, negligence caused its agents, employees, servants and ipsa loqui- he relied on the of res doctrine In tur. the alternative and' without waiv general ing allegations of negligence ipsa on the doctrine of res relying loquitur, pleaded specific eight acts of They substantially:, are negligence. (a) using paint; highly inflammable (b) paint used contained undue naphtha; (c) using amount a .defecr light inside the cord while tive painting in of that it was failing barge, (15) to' painted; (d) in paint 'negligence cord; failing to take under the circumstances (e) spect light explosive prevent said ex while fumes were proper precautions to pre opera- *3 proper created in ventilating to take with no fans plosion; failing in (f) sparks (16) negligence while the and a prevent tion, of fire that such was cautions to proximate painted; failing explosion; (17) in of being (g) cause barge was explosive that. light barge draw off the a in provide using fans to pre- of which properly equipped were created in the course was not fumes that sparks, painting inside a vent (h) (18) negligence and1 in and it was painting; proper pre under barge taking light, closed without such such circumstances use prevent explosion. (20) explosion ap- and cautions to an at the time of the pellant Burton; (21) was an of the effect that The Carrier answered to appellant that was not in the course of his plaintiff employee at' the time was riot an employment with Burton’ at the time’ he injuries asserted other received his and injuries; received his that he was (22) pertinent defenses not Defendant here. not negligent in going barge near the at spe- general denial and entered a time; appellant (24) that fail not cially pleaded appellant that tres- was a ordinary to use care in placing himself or, licensee, passer, alternative, a proximity, close barge being painted to the plea and an alternative that an em- operations painting while being were con- appellant’s sole ployee Burton, and that ducted; (26) appellant that volun- not Law, Compensation remedy was under tarily place proximity himself in close contributory plea negli- and a further painted the barge being painting while gence. conducted; operations (29) being were appellant smoking cigarette that was not the evidence the At the conclusion of proximity time in close to the at the per- motion for court overruled Burton’s explosion; (32) of the that A. Tibbetts J. emptory granted the motion instruction but appellant did not that was on Bur- know of the Carrier. premises just prior explosion; ton’s to the (1, jury appellant 2 (33) The its verdict found that did not that Tib- know injury 3) appellant premises an while charge and sustained betts was in of Burton’s premises appellant’s on the of Burton reason of at conversation the time of explosion premises, Henry on a such Fruge; (34) appellant barge being in the exclusive control of shop beyond carpenter did not sole- Burton, (4) and while the of ly purpose painter talking for the to the company engaged painting such matters;' personal (35) Mott about of the barge the interior at the time of Henry duty off Fruge was at the time explosion, (S) painting such that such appellant just prior his conversation with Burton, was under the exclusive control of explosion, appellant (36) appellant was an invitee on (6) Fruge duty the time knew that off at time; appel- (7) jury with him. The his conversation also a lant was licensee explosion (37) further found that the (cid:127) (8) trespasser, further that he was not a accident, of an unavoidable the result (9) painting being that such done $50,500. damages (38) fixed his manner; negligent (10) in a that such proximate negligence appellant’s was a cause of the The court overruled motion explosion; paint (11) that judgment which was for on the verdict. Burton sea- inflammable; sonably highly (12) judgment used was filed motion non pertinent negligence that it was under the circum- obstante veredicto and to this highly stances to use such inflammable he asked the discussion court set aside paint, proximate jury’s 7, 8, (13) findings that this Issues Nos. explosion; 12, 13, 15, 17, cause of the 33 and 34. In the al- (14) that ex- plosive alleged fumes were created in the ternative Burton in said course motion substantially judgment is assailed 'trespasser at plaintiff

that if was not erred points: (1) on three the court place explosion, that under jury’s finding Issue occupied setting plaintiff undisputed evidence aside 6 and in motion granting matter Burton’s legal employee as a status of an veredicto; (2) in such, judgment non obstante law, under he was covered and as judgment Compensa- appellant’s overruling motion for the terms of the Workmen’s verdict; subject place (3) tion of Texas at the time Law error, policy foregoing points granting injury, that defendant’s of his Carrier’s motion instructed verdict. Compensation Insurance of Workmen’s the, complete plaintiff’s cause of bar to question The first must claim our *4 against action him. in attention is: Did the trial court err setting jury to aside the answer of the part It quote We in from the decree: plaintiff Issue 6 the effect that the appearing the defendant to the court that premises an invitee on the at the time and proper a “duly filed in this court place injuries? of his is that Our view vere- judgment motion for non obstante he did. grounds the the evidence dicto on fact, no of directed raised issue a * * * plaintiff jury would Since the found that said defendant verdict for invitee, an only motion was we in which are concerned proper, and been have requested finding. the court to the evidence favorable to Be this also defendant said reviewing testimony certain in findings on fore the tendered jury’s disregard the behalf, jury’s perhaps said issues, say this including the we should special pleaded 6 above response Special Issue in effect that on the finding in * * * opinion shown; being of the the returned to injured he had Burton, answer to said where he had been finding premises of jury’s that the (cid:127) support in the formerly employed, no to discuss a raise No. 6 had Speciál Issue employment if re disregarded, and should be and resume his evidence for said de- if his granted; verdict quest that a directed for raise was * * * proper, have been and he request granted would raise was not fendant of said defendant collect his the motion rehired he intended to and that was not pick up veredicto herein obstante judgment non which was due back accordingly ordered is granted, be tools which were Bur clothes and work should be, grant- hereby is and it said motion premises on the premises; that while ton’s vere- non obstante ed, judgment and that injured as the result an invitee was as Bur- for said defendant entered dicto be em of Burton and its negligence the ordered it is further ***.*** ton consisted of ployees. Burton’s answer parties respective motions of said denial, plea plaintiff a was a general are, each and verdict judgment on the alternative, licensee, or, trespasser, in the both, overruled.” or, alternative, employee, an and the plea contributory negligence. further recit- we find this further the decree In jury under said same al “And : the evidence which we detailing Before court, having re- from the . instructions pertinent to the issue of' invitee is -think plaintiff, against verdict their turned licensee, quote given we instruction Broussard, of the de- and in favor Oralee by the court: fendant, Employers Insurance As- Texas “By term ‘invitee’ as in this used sociation, things in all said verdict was person premises court, meant a accepted charge is by duly received place, ques- at the time and filed, actually of another and was ordered and was implied tion, by express By invitation. upon of this entered the Minutes filed and is meant an express invitation provided appel- invitation The decree court.” or those in charge the owner extended nothing against Insurance lant take implied premises. By invitation is Carrier. person premises meant a sard had been an of Burton for place time and ques- years about prior occurrence four injury made tion with knowledge and consent of the the suit, basis company authority purpose owner or those for a engaged in the repair construction and connected with the business in which the types various of sea-going vessels. It owner engaged, and there must be at maintained a shipyard adjoining the Neches mutuality least some of interest in the ship sub- channel and covering .River several ject to which the business land, visitor’s relates. acres of extending from the water’s edge back to Highway State No. 87. On per- “You are further that a instructed premises buildings, several in- may parts son an invitee to certain cluding an building, carpenter office shop, another, but not in- an shop, plate shop, and a ware- machine thereof, vitee parts as to other There was area adjacent an house.. person order to an constitute a invitee edge water’s where vessels were-construct- any particular part as to premises, of' ed before being placed in the water for invitation, express must be either final work them. Persons entering the implied, extended owner or some- premises Highway (which was the one authority having apparent actual or *5 only entrance) pass would have by to first so, to do person such upon to to come or the office, opposite front and office upon part premises. such of such was a parking provided lot A visitors. double railroad track tra- “By person the term ‘licensee’is meant a premises versed the between the front of- who goes premises by the on of another parking and the of the fice and lot rest implied permission express of the or owner premises were signs and two erected premises. charge or those in of the tracks, placed by the railroad which one of per- that a are further instructed “You Apply stated “No Visitors Allowed. parts of may licensee as to certain son be a reading “No Per- the Office”. another, premises, of not a licensee the but Beyond sonal This Point.” These Cars thereof, that in order parts as to other signs put up by Broussard were himself. person any a licensee as to to constitute injury, barge At the of Broussard’s premises, particular there part of such located in wa- under construction the was. implied permis- express or must be either channel, ship ter the interior of of the having or one the owner granted sion painted. being spray The dis- which was authority grant per- to apparent actual or point of from the entrance to the tance mission, person part be on such to to such up premises to railroad was 160 the track knowledge the premises, of the of Thence from railroad feet. the track part premises person on of such such shop carpenter plus,' the was 72 feet From -premises.” the carpenter shop edge the the water’s was plus, making thus a total of 190 feet only objection foregoing to the The feet the tracks from railroad to the water’s forward in the instruction carried brief dispute edge. there was some While appellee Point Í6 The record Burton. quit, he whether was Broussard’s fired object Burton did shows that failure terminated, employment -been insofar “apparent term to define of the court the concerned, as. at noon active were duties foregoing as used defini authority.” 12,. Thursday), July (a on but did tion, did not the court a but he submit date, pay not his on was receive term, for that definition of this reason pay his get 'told to return check. He point is Rule overruled. See kept some his work clothes and tools Procedure; Rules of Civil Magnolia Texas carpenter shop premises on did not Johnson, Tex.Civ.App., Petroleum Co. v. prem- take these with him when left the 176 S.W.2d 774. Thursday, July ises 12. He not on re- premises In Friday, defendant Burton’s brief we-find sub- turn to the time on a, stantially following statements: six July but at o’clock m. Brous- about on carpenter- shop; than with his that Burton Saturday, July he did return any agreement more hadn’t made nephew for Burton. Accord- about: who worked money Broussard, pur- ’phoned for the Burton ing to he returned not Friday him on to come talk out and about pose with O. discussing W. money; top more boss appellee matter that Tibbetts was Burton) (President Hoeny when not his Mr. Burton and Mr. pay, getting increase there; previously performed. that all he said to Tibbetts was the work “good morning”; em- that was 75 to 100 feet leaving active reason carpenter shop from edge ployment had refused requested barge being spray water where a-pay raise that he had grant painted; Thursday, Further,'according that at the time was an- July there Broussard, barge land, up cribbing to other tO' he intended back blocks, request and to close grant 'his if Burton w&uld work painted pass pay increase, in- had to for a but under otherwise earned, up blocks; passed Tib- pay previously that he tended to collect his standing carpenter betts door Pie depart with his'clothes tools. shop; that Tibbetts not him to tell six the Burton at about entered yard or leave the where was going. ask neph- m. in an automobile a. o’clock parked on the ew, the auto was then Burton testified to the effect that his The front opposite the front' office. lot m., regular p. Friday, ' at 4:30 open at the so office carpenter shop, though men on the railroad tracks toward the walked night shift would sometimes their watchman. Henry Fruge, night met office, front checks either at the *6 in- Fruge with conversation some He had foreman; that there were two night the whereabouts Burton’s as to Mr. quiring' track, saying railroad one signs the had Mr. Burton by Fruge that and was told Apply the Office” and “No at Visitors— conversation, fishing. During this gone Beyond Cars saying other “No Personal Broussard, painter named according to Point”; employed This -that men who were the Mott, working who office; hired the front that in the were at Also, water,, according to him. called to the railroad tracks and the area between Broussard, to see what Fruge go told him authority ap- water, Hoeny to Mr. had wanted, proceeded he walk from so Mott him, man, prove but could not hire that edge the to the dock railroad track the hiring men was done at the front the up was tied and when he the where office; came to his that when Broussard any barge, before he had con- the reached card on his desk and office he threw his versation, Mott, explosion occurred quit.” the were That “I causing injuries. The barge, his the inside paid Friday for the current until not week shortly after six o’- explosion occurred week, following so that Broussard of the qn 14, Saturday, July m. clock a. previous money coming from the had some week, quit if he that he had not ’would to- the effect that it testified Broussard day, Friday, his next have received the feet from entrance- on was about m.; track; 13, p. July at 4:30 that he told Brous- premises to the railroad that - out that posted by office and signs two the rail- sard were there ready eight money at o’clock the to the would nearest front office and road track that it been sign morning; next would have meaning of the was “No that ready office; he put in the main that did not Visitors”; up that signs he Thursday, the remainder of supposed were not see Broussard go knew that visitors 12, Friday, July nor on that he sign; July beyond that that was about 75 feet contact nor did sign did not Broussard the “No Visitors” to the car- from him; Hoeny he shop, clothes, that met kept he contact penter where morning at about 3:50 a. m. on the yard as in order clothes well as that they planning go as any July he go didn’t have to his tools farther he Broussard Mott testified to the effect see that did not fishing; did said, time; Fruge, night call to he had no at Broussard nof. there, Mott, watchman, journey- reason call him that Broussard paint barge up crawled painter, cribbing to. under the preparing man of, blocks and Mo,tt no three feet him barge;. came-within interior , personal they when and that had a employees;; conversation control over tool box he had left, yard, charge the about loaned Broussard Tibbetts, that, watchman; explosion then was fore- night occurred. (End of man; not there when substantial that Tibbetts was Bur- statements left; ton’s Hoeny brief). Tibbetts came that' when authority yard higher in years age Plaintiff was at the time or Mott. Fruge than- trial;, he was born and reared in Burton further testified: Louisiana through- grade and went the fifth school; he had worked a farm in you to what the facts “Q. I’ll ask state carpenter during Louisiana and did work the 14th of are whether war; injured July, that was of in- July, you intention injured at the time he was he had been re- creasing Broussard had been living in Port approximately Arthur four quit? ceiving prior I to the time A. (cid:127) years; that O. W. Burton was President did not. Company, of defendant Burton ' plaintiff when you moved to 'Port' “Q. told Broussard? A. Arthur his Had so sister niece were working tell I would him. for O. W. I didn’t raise Burton, plaintiff’s job first was with ship- “Q. you left the Prior to the O. W. yard Burton. did Plaintiff work yard approximately 4 o’clock jobs Burton, and other odd for Mr. you .any morning, have 'notice or personally' Mr. Burton hired him to way ány knowledge information in work at the Company Construction as 'a out Oralee to come carpenter’s helper; that the first work he No, sir, I had' morning? there that A. go,t shipyard when .to.the was. way no come out. knowing would up office; clean plaintiff Mr. Burton^s *7 boat; cleaned when .Burton’s fishing you “Q. Had been sent to word offices, up he cleaned which he would anyone expecting that he was to come out thing do the first in the morning, he would sir; No, you? there and talk A. to street.clothes, be dressed in his and he had work kept some clothes which he you “Q.: he communicated with Had put that he would then on to use any way Thursday the time at between work; for his other kept he also some you noon when he left and the time that working premises; tools were there around o’clock the morn- he since .had been in Port No, Arthur he had ing? A. sir.” anyone except never .worked for Burton Superintendent, Hoeny, Mr. the Plant Company. and the Construction Appel- morning testified to the effect that on the wife lant’s testified to the effect that she explosion yard he came to short- employed had been household Mr. ly m.; paint- before a. 4:00 he had the. for arid employ- some-time that her. purpose er Mott there at the time for the ment about month ended before the of painting and that the reason explosion; that -Mr. Burton had .advanced operation starting early for "the in the money to her and-her husband they when morning was because therfc less heat needed it. nobody yard arid was on the and there any danger; part: testified in “Q. wouldn’t be Mr.. Burton that there'would He just personal job; much work of a doing men there done so na- .that you that generally min- ture for he. Mr. Burton left within a few referred Yes, your darky. utes four to him A. sir.”. o’clock. “Q. anything be you Did he tell else the effect to was "tendered Evidence ‘Well, you.’ fire shying,' going sides I’m carpenter asked the 12, plaintiff July " , you’, says; ‘I’m- fire going A. He Tibbfetts,

foreman, raise your says, ‘Give' card Mr. Kennon Hoeny (Super- a Mr. he him referred going He you him to write out.’ he "was get- him advised intendent), who him, out, write me Mr. Burton told “If said to already, and enough ting ‘No, Let him come don’t write him out. clock.” that, theré’s like you don't ** (cid:127)* get pay.’ another he effect to the testified Broussard fire him "because Hoeny couldn’t knew “Q. you say anything Mr. Did more to Mr. O. W. job and I “whenever Well, or Kennon A. Mr. then? get to come me, going wanted that, say, I ‘I after W. told me Mr. O. got a time card went me.” you’ I just thank around and turned Mr. Burton. see office to went exchanged went and clothes. noon. .. place about took’ This “Q. you Did what meant understand he counsel cross-examination On you going when he he ? said was" fire part: Burton, appellant testified done, Well, way he wanted mé A. my to come back and check some other personal things a lot of “Q. You * * * Yes, timé, W., you? A. .sir. O. didn’t for Mr. Yes, sir. Yes, sir. “Q. Mow “Q Go with ^[*] ^[*] ^[*] yard fishing his house? A. trips? A. ’ back some ton firing “Q. You understood just you, I was say, is that ‘You’re fired?’ fired, time, right? but like he told he meant he was Didn’t A. me Mr. Bur- Yes, sir, going, -to pome money. more After give me some Mr. that, you paid you did “Q. When check, my up if I got write Kennon Yes, A. pocket? of his out own extra let Mr. could have was fired Kennon * ** sir. and hand it to me. my write check fact, you were the a matter of “Q. As say anything to “Q. Did Mr. Burton employee out there? paid colored highest you specifically as to whether he was paid one and the best too.” highest A. you a raise give in to Burton’s he went Mr. when That ‘No, just say, you’re Did he fired’? talking on the tele- office, Mr. Burton over’, we’ll talk it ‘Come back and say, the conversa- he finished phone after me, just fired?’ A. He just, ‘You’re told tion, ‘Bruce, back another time and come *8 ' * * * your check.’ you lay your card oh the desk “Q. Did or what? you were quitting him tell keep -you “Q. anything there to- Was sir, it ‘He asked No, I to him." handed A. your getting going there and out from him, 'Mr. O. wrong. I told what me pay day? Friday regular A. I my because children more raise I want W. waiting Mr. O. W. to send just **' * clothes’ need "go going me" to that word for r *' ** money. my give me say you regard he- did “Q. What you give he "Would or not to whether anything preventing “Q. Was there said, ‘Bruce,’-he-said, ‘I’m He A. raise? getting coming out there and it? A. your says, And-he you:’ ‘Here’s fire going to thing, waiting No, sir; only I was for. card; Mr. Mr. it to Kennon.’ your give out, come that he was him to call my hand and was it out took Kennon give me raise. going to out, told it and Mr. O. W. write going to thought going he-was to call it; “Q. You Bruce come leave ‘Don’t do given you a you he had raise day, you tell some other get his check some * ** Yes, pay? A. sir. time.’

673 Q. any- you there Had talk to “Q. Why you decide to out he'had ' Friday? up 'No, before it Saturday going blew ? sir. instead A. Friday go on because A. I didn’t want to “Q. good morning You told him see me going I figured Mr. O. W. was doing how was he and then what hap- 4:30; me maybe going to tell there at pened? called from on the A. Someone by going on Satur- something. figured I barge, off, pull and he started to and the it day, I him.” wanted to talk with light, cord, and the it! light and that was The explosion examination in He on direct went off.” testified part: very After a considera careful you “Q. out there on this When went tendered, testimony tion all the it is our you Saturday, going what out view that the evidence issue that raised.the W. for? to see if Mr. O. A. I appellant was an invitee and that it is suf go back give would me a raise so I could support ficient to jury’s finding thereon. my money”; to work and I wanted If view, we are correct in this this cause tools; his clothes and also wanted Inc., is ruled Weingarten, Carlisle v. J. shipyard he arrived about 6:00 a. 220, 137 Tex. 152 S.W.2d 1074. The m., night and the first man he saw was the “* * * rule there stated is: if the Fruge; a conversa- watchman that hé had plaintiff invitee, was on the as an rail- night with the tion watchman it was duty the defendant’s to exercise open track; road that the offices were not keep premises in ordinary its care to time; he had been talk- that after at that condition, plain reasonably so that the safe calling heard someone- Fruge he ing with nqt injured; and if the tiff would it he couldn’t see who his name but sp do, be liable defendant failed it would him night watchman told but the proximately damages caused there for the Mott; called him about that Mott was Mr. rule, by.” (The foregoing although gen times; said, Mott come “Bruce, three eral, applicable here.) Texaco See also see”; know was the he did not who it Wade, Country Tex.Civ.App., 163 Club v. night watchman but after the first time (no history), writ cited with S.W.2d 219 Mott called Mott that when

told him it was approval Triangle Motors of Dallas v. voice; again he knew him Richmond, 60; Tex.Sup., 258 Tex S.W.2d Grabner, only you Pac. Coal & Oil Co. v. thing Tex. “Q. Was ‘come see’ 441; Civ.App., Grabner v. Tex say? turned around 10 S.W.2d him A. I heard As Co., Tex.Civ.App., & 279 sign made a to come as Pac. Coal Oil and seen him he 550; Wheeler, Kallum standing barge”; S.W. v. 129Tex. He was him. him; (Com.App., Opinion why 101 225 Mott called S.W.2d that he did not know Adopted); Portland Cement Southwestern say anything after he “Q. Fruge Did Bustillos, Tex.Civ.App., 216 Co. S.W. did, you and if he what told it was Mott Id., 929; 268; Tex.Com.App. 211 S.W. ** * says, go say? A. He see Turner, Tex.Civ.App., Bohn Bros. v. 182 wants, maybe Mr. O. W. told what Mott ; (writ m) er.ref.w S.W.2d Tex.Jur. you”; after something good C.J.S., par. Negligence, 43§ *9 Mott; he walked toward the conversation p. 511; p. 43(3), C.J.S., (1) 508 and' 57 § Mott got near saw stand- that when Servant, 308; 570,p. Master and Steiskal § barge; that he saw no one else ing on the Co., 92, Field 238 Ill. v. Marshall & N.E. 87 Mott; except barge that he around 117; Corp. Packing Trosper, Vincennes v. someone Tibbetts and else at the back see 7, Ind.App. 23 N.E.2d Zeigler 108 carpenter shop; that Mott door of the Specialties Co., Country Mfg. Oil 108 Kan. top he did not on P. 603. anyone else was in the know whether - not; Appellee says: appellee he nor Burton “This that neither Mott was or just determining question that- in the. smoking; good morning recognizes that he said Mott; whethér Broussard was: to an'invitee at his, evi- mon place injury, advantage, or mutual while

the time interest most, favorably object a is to license inferred where the is dence must be construed pleasure Likewise, recognized person mere or benefit of the his it is contention. ” using an it.’ immaterial whether he was is invitation, implied by express or invitee invitation, duty as in either event the owed dispute It is without that Broussard ordinary to him care." He was that of express had invitation from Burton to only Brous- further that the basis states come pay back ex and to that might grant believing

sard had for ques tent Broussard'was an invitee. The a fact had had a him raise was the that he tion here is: Did the tender the evidence relationship personal than average closer issue that implied Broussard had an invita past. testi- with Burton in the Broussard tion to return to the and see Bur Bur- fied that he intended to' talk to O. W. person ton in and talk get with him about “nobody ton and told Mr. O. W. pay? else unless ting ques more In determining this something, go somebody to else to tell me jury right tion had the to take into con give back to work or ine a raise” testimony sideration all of the and the I “if him for me would not hear talk of surrounding facts and ten circumstances check”; work, my go I al- back want showing dered the evidence the relation n ship so give that “if he me a existed between didn’t want to Broussard and all, Mr. Burton. First of Broussard going my money, I occu raise was sure.” pied very peculiar a primary unusual situation Broussard’s Thus we see that employment. with reference to his His shipyard on Satur- purpose employ been had in the and niece about sister see Mr. O. W. day morning towas. many years, Mr. Burton’s household W. had left if Mr. O. or to see raise prior employment. to his His wife had with, for him yard someone at word been an of the household also pay. Ob- a raise in go with back work employment a month ended about her had O. viously, whether W. not know happened. accident before the arrived, because was there when work, yard he looked after Mr. Bur did the night .watch- about him he asked boat, up, fishing cleaned it ton’s gone fishing. he had informed and.was man trips. accompanied fishing him on times anything or done it is seen Thus any no evidence that there were There is that could in as his going on Broussard restrictions way as an con- construed invitation is waterfront: Our view that near the statement Thurs- (1) of Burton’s sisted undisputed is that Broussard’s evidence day come back some other for him to ship primary purpose in going back to the Fruge’s pay; (2) suggestion get person yard to see Mr. Burton wanted with Mott what see re-employment talk with about calling to We are not Mott’s him. (3) of pay, unless he found that Mr. Bur raise complete construc- appellee’s accord with left word for him some other ton had think it is too restrictive. tion (As employee.. we understand Burton’s brief, If view). are mis shares we Notwithstanding the fact that much has written', view, jury in this think the we had question taken on -when been If licensee, Brous- right to draw inference. difficulty invitee is an one solely for getting intention been sard’s application of the law to each lies picking up his .excep his and then clothes and case, no particular and this one is tools, Cir., jury would Barton, right have Bagby v. F.2d In tion. and infer that he believe would have come gen statement: “The we find this Friday, regular because that was the applicable jurisdictions in all rule eral *10 day. Broussard, -Did under all in v. Louisville the approved Bennett & 577,584, surrounding circumstances Co., facts and his 26 R. 102 U.S. L.Ed. 235. N. Burton, and work for appears employment principle to be Mr. have ‘The erred, right infer from his is. the is inf where there a com- invitation conversation

675 Burton, fired, with when he was that he court should disregarded have the answer come of the'jury could back and talk with Burton in 21 to-Issue the éffect that person about rehiring so that he could Broussard acting was not in course of the money? employment more his We think. Broussard’s at the received payday injuries, action in not his coming back on judg- and that his motion for early coming in next ment morning the non obstante veredicto should have day story is consistent with that he been granted affirmed, his and here since it is undisputed wanted to talk to Mr. a raise Burton about that his were covered in re-employment,. by compensation be- insurance. We are not lieved Burton wanted him to do. in Mr. so accord with this view. jury The same Being the view. his

yard man, looking go- after his boat Our appellant view is that him, ing fishing considering with employeé hot an under all the facts and n long period employment and the fact circumstances and we think such view is that Burton money advanced to .him and in accord with the rule by announced our need, wife at times in when Supreme Court in Recipro Lumbermen’s and being familiar with the voice tone of cal Behnken, Ass’n v. 103, 112 Tex. 246 by used Burton and Burton’s manner in 72, 1402; S.W. 28 Kirby A.L.R. Lumber think this has dealing with we view Scurlock, Co. v. 112 Tex. 246 S.W. support testimony as a This the whole. 76, and American General Ins. Co. v. Wil supported part forcibly by that view is liams, 149 Tex. 227 S.W.2d cross-examination, Broussard’s where record here is that at the close of the tes “Q. understood he meant said: You timony the granted court the Insurance you, right? firing is that Didn’t Mr. verdict, Carrier’s motion for directed Yes, just say, ‘You’re fired’? A. we have stated the the recitals in decree sir, fired, he told me to said I was but reference this matter. Notwith come back some other like he was behalf, standing the court’s action money.” give me some more jury ques-: the court did submit .to undisputed Since it is that Mr. Burton did appellant tion of whether employee was an give express Broussard an invitation acting employment course of his pay, we come back another injuries, at the time of his have we jury infer right think previously jury’s stated the to each answers from all the facts circumstances of these issues. It is true that neither implied invitation Broussard had nor the Insurance Carrier filed approach back about come Mr. Burton asking motions to disregard court re-employment pay. and a raise jury finding of Issue to the effect 20 employee, that Broussard was an but since view, Being of this we think the jury'found that Broussard was not act setting finding court erred aside the ing employment in the course of his jury Believing to Issue 6. also that injured, time he was we .are of since guilty.of negligence, Burton was defendant view, the further that the court erred in jury, as found that caused the ex appellee’s granting motion for judgment plosion proximately and that same inflicted veredicto, non obstante and also erred in appellant, injuries appellant is en appellant’s granting motion-for judg damages, titled to recover his as fixed jury, verdict we think ment. jury, under the authorities here cited. Wright the rule v. Longhorn stated Drill Co., appellee Tex.Civ.App., 1947, ing But Burton contends in 202 effect S.W.2d ; circumstances, (writ ref.) Wyrick, under all the facts and 285 Williams v. Tex. Sup., employee Parks, Broussard was an at the time S.W.2d Hines injured law, 289, 96 as a matter (Com.Apps., opin Tex. S.W.2d 970 jury adopted); since the found in their ion answer to Is- Edmiston v. Texas & N. Co., appellant sue 20 that was an O. R. Tex. 138 S.W.2d 526 opinion injuries (Com.Apps., adopted); the time he received his that the and- Hous- *11 Walker, tors’, hospital expense, Tex. v. medical Ins. Co. ton Fire & Cas. applicable entered Sup., judgment is not here. asks that heretofore S.W.2d court had extent. differently, if trial court reformed to this (Stated have here same views we entertained Accordingly, of this court judgment appellant’s expressed, granted it could have conformity is reformed in with said re- have been and not judgment motion for mittitur and rendered favor judgment is decisions). foregoing in conflict with the appellant against of Oralee Bur- Broussard expressed, we here Because of views Company, ton Shipbuilding Construction & majority duty to follow the it is our think Inc., $50,000, for the of with interest sum Supreme opinion our Court Burt of 7, 1952, thereon from November 194,point Lochausen, Tex.Sup., 249 S.W.2d per per rate six cent annum. plain in favor judgment and render for against tiff defendant judgment The in all other of this court damages fixed verdict. amount of respects for is undisturbed and motion rehearing appellee Burton Construction carefully each of considered We have Inc., Shipbuilding Company, & is overruled. propositions urged defend- counter do not and believe ant Burton

present. error. reversible

Accordingly, trial judgment the' nothing a take

court insofar as it rendered Employers In- of Texas

judgment in favor judg- is affirmed. surance-Association ' granting motion of the trial court

ment obstante veredicto judgment non Ship- & Burton Construction defendant v. BUSH. BUSH Co., Inc., judg- is reversed building No. 4981. of Oralee in favor ment here rendered against & Burton Construction Appeals Texas. of Civil Court Inc., $50,- Co., for the sum of Shipbuilding El Paso. 500,! -legal interest thereon from No- 10, 1954. Feb. original judg- the date the vember trial court. was:rendered ment Rehearing 10, 1954. March Denied judgment .Accordingly, the is affirmed part part reversed rendered. Rehearing.

On Motion Appellee Ship Burton Construction & - Inc.,

building Company, in its motion assigned has’ error

rehearing, effect judgment which we héretofore ‘ in this cause is entered excessive in the $500, since’

amount of such sum of $500 expense’pleaded alleged medical

represents- appellee

by appellant and contends no offered to show

proof1 expense such same was' not and that' recoverable as á ' ' : law.

matter of -

Appellant has filed a herein .remittitur concedes that is not entitled to re-

cover additional sum for doc- $500