47 S.W.2d 858 | Tex. App. | 1932
This suit was instituted by appellant, Maryland Casualty Company, against appellee, Mrs. B. H. Williams, to set aside a final order of the Industrial Accident Board awarding her compensation for the death of her husband, B. H. Williams. The Coca-Cola Bottling Company, a corporation, was the employer. B. H. Williams was its employee, and appellant was its insurance carrier. The jury, in response to a peremptory instruction from the court, returned a verdict against appellant in favor of appellee for $7,200, of which sum $1,920 was found to be then due and the remainder to become due at the rate of $20 per month from that date. From a judgment duly entered in accordance with such verdict this appeal is prosecuted.
Whether the employment of a workman injured while engaged in a particular task is in the usual course of the business or occupation of his employer is ordinarily a question of fact. To make such issue a question of law, the testimony must, not only be uncontradicted, but must be so conclusive that reasonable minds cannot differ as to its effect. When the ultimate fact to be ascertained is not shown by direct testimony, but is to be inferred in whole or in part from other circumstances in evidence, a jury question is presented. Stooksbury v. Swan,
Appellant presents assignments of error in which it contends that the testimony is wholly insufficient to show the average weekly wage of the deceased, such showing being a necessary basis for the award of any compensation. The only competent testimony before the court on such issue was the statement that the deceased had been at work for the company about two weeks, and that he was being paid $6 a day for eight hours' work. Such testimony was wholly insufficient to form a basis for determining the average weekly wage of the deceased. Texas Employers' Ins. Ass'n v. Fitzgerald (Tex.Com.App.)
The judgment of the trial court is reversed, and the cause remanded.