*1 right to have for the deten- money of the to which he
tion is entitled wrong
by reason of the done to him. cases in
For more recent accord with rule, Black Pipe
above cited see Lake Line Union Const. State, Company
154 Tex. Corp. Textiles,
Metal Structures Plains
Inc., 470 S.W.2d 93 — Amarillo e.). r. ref’d n. Adams, Inc.,
Big Three and have other find to
points be without merit are, accordingly, overruled. judgment
We affirm the of the trial Adams, Inc., it
court insofar as awards to $36,000 price
the contract Bayport $70,000, Victoria, collectively, on the
Santa Susana and West Palm con- Beach prejudgment
tracts. The award of interest upheld.
as to these contracts is likewise judgment denying any recovery to Ad-
ams, Jr., is affirmed. part That
judgment allowing recovery Bayport on II awarding exemplary damages is re- judgment
versed and hereby rendered Adams, take nothing as to
these.
Judgment in part, affirmed and in
reversed rendered. J.,
STEPHENSON, not participating. MOORE, Appellant, R.
Clester MEANS, Appellee.
Hugh Bevil Appeals of Texas. 3, 1977.
418
To be compensable, an injury must be sus tained in the course employment of and originate in the work of the employer. Tex.Rev.Civ.Stat.Ann. art. 8306 3b§ (1967). Hook, Paul Ins. Co. v. St. Van 533 S.W.2d 472, 474 (Tex.Civ.App. 1976, no — Beaumont writ). Where an assault is directed at an for reasons to him and arise does not out of his employment, the employee cannot recover compensation ben Musslewhite, Houston, Benton for appel- efits. Tex.Rev.Civ.Stat.Ann. art lant. 1(2); Standridge v. Constructors, Warrior 472, Keith, (Tex.Civ.App. Q. Beaumont, Robert for appellee.
—Houston writ); no [14th Dist.] Highlands Underwriters Insurance Co. v. DIES, Chief Justice. McGrath, 485 Moore, below, plaintiff Clester R. —El Paso also Commer county judge administrative assistant to the Austin, cial Ins. Co. v. publisher of Hardin He was also 1939, writ dism’d — Beaumont weekly newspaper of a “The Kountze jdgmt cor.). 25, 1975, meeting News”. On it is plaintiff So clear that when Moore county’s plans called discuss for the sought accepted workmen’s compensa- disposal garbage. collection and The de- tion, required he was to take and took the Hugh Means, below Bevil a county his was in the course of commissioner, and Moore were present at employment his with county origi- meeting. nated in his work with the county. Thursday, April On Moore Now, in this defendant published a story in “The Kountze Means, plaintiff asserts that “an employee dealing with garbage News” “kickbacks” from suing is not barred a fellow employee which Commissioner Means considered in- damages, in common law though even sulting. meeting At Commissioner suing employee accepted compensation has Means assaulted Moore. benefits, employee being County Hardin is a subscriber to work- acting in the compensation insurance, men’s employment at the time he committed the claim, Moore filed as an employee of give acts which rise to the third party ac- Hardin with the Industrial Acci- tion.” It is position in the in- Board, dent and received benefits. There- stant suit that defendant was not acting in after, plaintiff Moore sued Means for employment the course of his at the time of damages. sonal Means filed a Motion for assault, or —at least —that a fact issue Summary Judgment which the trial court or not exists as whether he was so act- below, and from granted ing. by deposition Moore testified that he Moore, perfects appeal. this employment the course of at the parties will be referred to herein as time below, by name. The function of the Industrial Ac quasi-judicial; The mere fact that an is Board is cident its award is injured by while at work to the same faith and entitled credit as the court; for his does not in and of itself judgment of a and it is subject injury compensable. make the Mu Liberty attack. See 63 to collateral Tex.Jur.2d Hopkins, Insurance Compensation tual Workmen’s 1967, nre). (1965). Keller v. Employers’ Ins. — Beaumont Ass’n, (Tex.Civ.App.— S.W. his at the time he commit- Texas Employ Beaumont ted the acts. Morgan, ers’ Ins. Ass’n v. S.W. the McKelvy plaintiff injured In case 1927, jdmt
(Tex.Com.App.
adopted; Vestal
finger
Ass’n,
Employers’ Ins.
S.W.
v. Texas
personnel
was taken
director to the
(Tex.Com.App.1926,
jdgmt
*3
of the company
office
doctor who treated
v.
adopted); Estes
Hartford Accident &
settling
employ-
the
After
with his
Indemnity
(Tex.Civ.
S.W.2d
carrier,
employee
the
developed
er’s
tetanus
ref’d); Security
App.
Paso
— El
negli-
and thereafter
sued the doctor for
Casualty Co. v. Peer Oil Corporation,
Union
gent medical
treatment.
trial
The
court
1109, 1111 (Tex.Civ.App
1 S.W .2d
. —Beau
for
directed a verdict
the
ap-
doctor. On
mont
Ocean Accident &
Court,
peal,
Supreme
our
discussing
Pruitt,
Corporation
Guarantee
v.
(1967)
stated:
1933). Moreover,
(Tex.Com.App.
presumption
“There is no
.
.
. of a
takes
position
judicial
where one
one
in a
and servant
relationship
master
where
he cannot
take
proceeding,
plainly
later
a
proof merely shows
the
that an ordinary
position
proceeding.
in
inconsistent
another
employer
company
or insurance
has ar-
Estoppel
22 Tex.Jur.2d
ranged for a doctor
treat
(1961), and authorities therein cited.
(381
63)
son.”
S.W.2d
Bermann,
Heibel
S.W.2d
The facts of our case are different. Un-
writ)
is a
— Houston
the
like
in
McKelvy,
point.
case in
and defendant
Moore, in order to receive workmen’s com-
Restaurant,
employees
both
of Maxim’s
was
pensation,
required to
take the
plaintiff brought suit because of an inten
upon
the assault
that
him by his fellow
injury
tional
inflicted on her
the defend
Means was
employee
committed in the
in
ant while
the course
fact origi-
in
employment at
“Cit
scope of her
Maxim’s.
in
(Hardin
nated
the work
the employer
§3*,
ing
the
Tex.Rev.Civ.Stat.Ann. 8306
County).
Unlike the
McKelvy,
in
Heibel, supra,
court in
said:
however, plaintiff here now takes the com-
the
appellants, by
“We are of
view that
pletely opposite position. The authorities
proceeding to claim and collect benefits
above,
think,
we cite
do
permit
him
under
provided
workmen’s
Appellant’s points
this.
to do
are overruled.
policy
provided by
of insurance
em-
The order of the trial
granting
court in
established,
above
ployer, as
mat-
as a
summary judgment
is AFFIRMED.
precluded
maintaining
ter of law
from
an
common
damages
action at
law for
.
STEPHENSON, Justice, dissents.
fellow
against
employee.” (407
a
S.W.2d
946)
at
respectfully dissent.
I would reverse
case for a
and remand this
trial on its
v. Jeffreys,
See also Jones
merits.
'd).
writ ref
— Dallas
McKelvy
Plaintiff Moore
that
District
grant
contends
The
Court could
defend-
Barber,
for
(Tex.1964)
summary
pensation clearly, benefits shows least, ing scope question at raises a of fact as to * ries, employees employees . shall “The a subscriber . . . . . but such . . right against their compensation solely have no action look for shall to the asso- servant, any agent, against employee of or ciation.” inju- damages employer for for said scope of employ- at the time of this attack. ment HOUSTON NATIONAL BANK et al., Appellants, (1967), provides .employee that an has no fellow employee of action right FARRIS, al., Appellees. Jeff et damages personal injuries. for How
for ever, statutory provision to have Appeals Texas, application, proof would have to show Waco. inflicting the course and 1977. Barber, McKelvy the time. See at April 20, Wright, and Ward v. Worth — Fort *4 compensation In the case the claimant he, proving the burden of
had (not the defendant in the case be- us), injured in the
fore scope of employment. Un-
course 1(2)
der Tex.Rev.Civ.Stat.Ann. prove he to
(1967), third injure
(defendant) plain- was motivated something because of connected with
tiff employment. However, proving motive in the
defendant’s
case and damage separate two
distinct issues. copy
The certified of the Industrial Acci- file is a of our
dent Board record and defendant’s reason for as-
does not show
saulting plaintiff. Such record also does show defendant was
not at the time of this
assault. given day in court should be establish, if he can that defendant was in the course of his at the time of this
assault.