*1 (Tex 260 SOUTHWESTERN REPORTER n guilty they adjudged <&wkеy;405(4) hearing, of 2. Master In in and servant —Evidence compensation to case held show death contempt of court. n employment.” “course of holding apparent for basis .As Evidence that an assistant mill begin- Supreme Court, and in the dying shortly found morning before 7 o’clock in the ning opinion, it is stated: place eight at a six or tool feet from a court, “That circuit to end shop power electric wherein used and about ap- quo might preserved pending such status peal, two feet from Ford car toward which injunction power an equity рower continue to apparently an electric drill inherent force virtue of building, connected to socket a not doubtful.” practice years made arrive a it a for to number of shortly at after 6 o’clock for work injunction by purpose things shape in force getting The continued for tools 7, very purpose for the use men arrive held to a valid order finding warrant that he met death while while doing that which the action of those held employment,” “in engaged the course of destroyed. contempt suffi- This statement become or about reported cient show distinction repair car. sonal work on reported In case the case bar. definitions, [Ed. see Words Note.—For order, subsisting there was valid le- case Series, Phrases, First Second Course capable staying gally hands of those Employment.] who violated it. the instant ease there &wkey;>348Compensation Master servant staying order, capable legally a void liberally construed. Act preventing no hand or action those (Ver- Act The Workmen’s i against Again, it was whom directed. Sayles’ 1914, Civ. arts. 5246h- Ann. St. non’s reported apрeal case was an liberally 5246zzzz) construed. should be bringing Supreme order Court valid <&wkey;54 subject-matter 4. Evidence for review with which —Inference should premises; presumption drawn from uncertain dealt, order instant while upon presumption. cannot be based order, capable bringing void for be- from uncer- An inference drawn part subject- court review no premises, based tain nor matter with which dealt. though presumption, court draw another therefore of this court presumptions several conclusions alleged and admitted the sec- acts of circumstances; be- same nor is retary Attorney General, state and actually done, presumed thing lieve but sufficient if the stated, the contempt do not reasons form basis to a conclu- evidence leads parties and the have been done. sion that it proceedings^ discharged directing the rule from- them cause; show and it is so Appeal ordered. Court, from District Jefferson Judge. County; O’Brien, Geo. C. VAUGHAN, J., dissenting. Employers’ Suit Insurance compen- Association aside an to set award of sation Industrial Accident Board favor of R. others. From L. defendants, plaintiff appeals. TEXAS EMPLOYERS’ INS. ASS’N v. SHIP (No. 1038.)* LEY et al. Affirmed. Botts, Baker, Garwood, (Court Parker & Appeals Hous- of Civil of Texas. Beaumont. ton, Parker, 10, Rehearing Beaumont, S. Oswald March Denied April 2, appellant. 1924.) O’Fiel, Beaumont, appel- I-Iowth & &wkey;>405(4) I.Master and servant —Evidence lees. compensation finding case held to warrant shock instead of heart ' HIGHTOWER, May 5, J. 1922, disease. C. On R. L. employee who was an In a suit insurer set an award oí Arthur, Port compensation Tex., died the death of a mill foreman very suddenly premises eight found six or feet from a toolroom con- employed. power which he about two feet Texas Com- automobile, compensation 'his time, at the claimants a subscriber pany, alleged Employers’ was killed an electric shock Liability. state, Act of this received from an him, electric drill found near policy carried by ap- of insurance issued held, including on the evidence the pellant covering Shipley as one of its em- unexplained physician failure o'f insurer’s to ployees. Shipley, the time of his make a examination of the blood tuan, was a aр- married his wife near heart acertain of the pellee in this had two small angina pectoris, appellate disease could not court children, one four jury’s the other four conclusion that age. After prop- months death "caused instead of the ' disease, given compensation er was unwarranted. notice was cases Digests topic Key-Numbered and KEY-NUMBER in all <®rv>For and Indexes jurisdiction *writ want error dismissed for June *2 INS. ASS’N SHIPLEY v. EMPLOYERS’ TEXAS 647 I.W.) length what let tbis by appellees show at tbe Work- be claimed (Ver- tbe relative to both contentions evidence Act state men's of tbis appellant. Sayles’ arts. 5246b- made non’s Ann. Civ. St. 5246zzzz), claim filed sucb Relative to tbe contention made appellant, tbis Board of with Industrial Accident follow- tbe be stated that ap- bearing state, board, ing shown, practically tbe after and that without facts were plication, dispute: of Mrs. made an award in favor Sbipley $15 tbe two cbildren deceased, minor Sbipley, R. L. been work- tbe bad per After tbis award ing week for 360 weeks. Company Arthur at Port tbe made, company, insurance tbe approximately for of time seven tbe berе, in due time and notice that after due years prior bis and for several so, district it would do filed tbis suit in tbe foreman was assistant at what death county award court of Jefferson tbe Texas-Company called the shook mill tbe substantially aside; grounds being, stat- Shipley’s foreman at Port Arthur. duties as Sbipley ed, 'bis death meet employees shook were to in the injury while in of an sustained tbe result discharged properly mill their duties employment by tbe tbe Texas course of bis keep generally oper- oversee and liable was not timbers ation. shook mill Tbe where amount reason of sucb death. shaped boards are appellees filed answered and a cross- boxes; them in manufacture action, they alleged, in which sucb timbers and are sawed boards Sbipley killed an electrical afterwards drilled there removed employment course shock while tbe of bis them. On tbe boxes made of Company perform- for tbe Texas and while keeping services furtherance of tbe .interests ever had been assistant Company. of the Texas home, traveling in a small he came from his jury, tried with and their Tbe case was shook mill and reached tbe some- n of answers fol- consisted tbe four verdict lowing o’clock; tbe 6:10 and where between 6:30 special issues: definitely stopped shown. He time his got usually stopped it, “Special 1: car issue No. What tbe cause Shipley? We, out, R. L. Answer: later and a' few minutes was seen to jury, L. that R. proceed find from evidence shook in the come tbe out of was electrocuted. ear, which few direction' any, injury, “Special Did if issue No. 2: such mill; why feet tbe employment? R. L. arise out of said so, was, evidence whаt (cid:127) Answer: Yes. It was further shown does not disclose. “Special such in- No. 3: Did he receive issue Shipley went to what called' a witness that employment? jury, Answer: Yes. any, course bis in the if toolroom, filing tbe which is a room building 18 or 20 feet removed small about “Special in- such issue 4: he receive No. Did engaged proper, jury, any, furtherance and there be from tbe employment? filing Answer: of the affairs electrician borrowed room an electric Yes.” stating what for, again and he was .not be wanted to jury, Upon answers tbe tbe alive, 20 o’clock seеn minutes to 7 but about appellees per in favor for $15 was entered week for a prostrate lying on the period weeks, 360 tbis ground filing 8 room and feet apportioned appellees amount was between his Ford 2 feet from car. There was about attorneys. After its motion drill an insulated attached electric wire overruled, appeal-was bad been new trial tbis length, about 4 prosecuted by company. tbe insurance longer to a elec- this was attached insulated Appellant’s first is: contention brought wire, tric the window of tеned in an electric socket legally “There is evidence to sufficient filing room fas- support finding R. L. elec- filing inside he met or that trocuted an reason filing room contained electrical room. The appliances, injury alleged electrical de- power used and tbe fendant’s cross-action.” sharpening and saws knives be used contention second is: Tbe electricity. mill was the shook discovered, Shipley’s body legally sup- was first When “The findings port that, extinct, quite so, nearly if said R. and few life was received, L. died from an speak, and wаs dead he did not injury arose of or in the course of his em- out laying drill was minutes after. The ployment the furtherance or while ground foot or two em- the affairs of ployer.” point All evidence was to feet. drill was no current effect that at the time it readily picked was about seen these conten- will be fact, purely questions and in was discovered. raise tions dispose not the of them current turned Whether order .will (Tex. 260 SOUTHWESTERN REPORTER
'648 nobody authority, Acting on in the A knows. few of his death. Shipley’s body Sappington procured minutes before was discov services Dr. W. еred, specialist city of the witnesses he saw P. one testified of Beau lights filing mont, he, afternoon, burning the electric room on the same in com connected, pany physicians, with which but he was unable to electric drill was *3 three say lights being Sappington himself, whether the Dr. whom made Shipley thorough complete were fell. The evi a the most examination body the dence shows was a switch on that there of with view to ascer drill, by the cur electric use of the cause his death. All these of off; physicians they rent on or drill could turned cut mi testified that made by body but upon clothing whether this used nute switch examinations n Shipley Shipley the evidence does not indicate. of to ascertain whether there were Shortly immediately, Shipley’s any shock, by after if not indications of death electric body discovered, they and and was all testified that there were no such up picked wires connected therewith were clothing either indications his or examined, body. Then, and sulation and was found in his ascertaining it with a view to the wires intact and whether was death resulted from nat permit escape electricity injury, they of from wire ural causes and an al Indeed, body. They with the turned on. an elec most current dissected his took out high voltage minutely current as 2S8 run brain as was tric examined that and found through insulation, nothing any wire this with to indicate character of disease testing sufficiency brain; view to the of anything of neither did find insulation, by found this and it was in the ed ined test brain indicate death result protect one They the insulation was sufficient to an from electric shock. also exam handling minutely nothing the wire while current heart and found high voltage. undisputed any to that mony The testi to indicate character of disease of that They minutely further showed current member. lungs then examined his was carried this drill ordi nothing any wire found to indicate char narily, being lungs. They attachments used acter of disease of -then ex only carefully minutely kidneys of reached amined voltage, placed nothing'to any attachments for and new found indicate character high purpose making They the stated. After of tile above test of those disease members. then care Shipley’s death, fully nothing as well as at examined his liver and found bоdy found, any was the time made efforts were to indicate character of then examined disease They to ascertain the carefully member. cause all that dences scorches nothing witnesses in that connection testified stomach and his found indicate that signs there were external evi no death had resulted from con of an shock. no There were tained in that member. Dr. who performed autopsy, clothes no burns or evi this in the physicians, great length dences of flesh. contact with his testified at evidence, whole, as a was and no useful would be usually by undertaking to the effect that sufficient to an electric shock served his testi out produce mony here, any physician, death leaves some ex- or that of shock, stated, ternal indication of the either on the detail. He in med when sum victim, clothing or flesh after most examina careful usually expected tion, particular any indications case of unable to detect Testimony was, Shipley’s death, such a death. how- cause whatever ever, possible opinion, upon whole, also to effect it that was death person that a be killed an either result of an electric shock “angina pec- shock contact without exter- there a disease called medical men person angina nal indications either on the or cloth- toris.” stated that the disease He physicians pectoris victim. Some one be detected stated, substantially, by microscopic who testified that some authorities clared. examination of blood electricity proximity heart, make, de- vessels close Early the afternoon of the of but examination appellant’s Shipley’s death, approved surgeon showing no asked to there Arthur, Sappington, acting Sappington any at Port Dr. T. B. make The Dr. it one else. appellant, procured in behalf of written Thom reasonable Dr. inference Shipley autop- Mrs. mission from hold son’s could have that connection is that sy, autopsy, definitely cause be held an ascertained body Ship ascertain- examination R. E. whether ing thority ley’s gina This the cause death. written au- an death was the result of the disease Shipley pectoris. from Mrs. wаs broad and such examination had been If Dr, Sappington, appellant’s gave approved disease, as made for that present, complete surgeon, authority ap- certainly full and do it would excluded any everything Shipley pellees’ with the theory that death was might knowledge lead to a cause result of an electric shock. INS. EMPLOYERS’ ASS’N v. SHIPLEY TEXAS :.w.) physi question, up concede is a also all it the lees; close evidence of sum the To appel- laymen, proof no cians, rested burden of as the well that; say prepared еlec we are not or indications external evidence Shiplely, up taking the evi evi any -the sum tric shock to Ship- physicians, conclusion not warranted dence all the probably ley’s an elec resulted caused dence appellees. fur was this There as claimed natural causes. tric cause conclusion, testimony, we have considered ther before probative fact that One force for what was worth: Company’s employees, and, Sappington, of the inti interest who was mill, com insurance mate testified that heard of pany, on behalf associates ^nd authority complete having occasions” he full and on “several complain ex heart trouble and all from Mrs. to make heart, deem had a “hum” amination of *4 by put Shipley indicate, necessary, proper ascer a would view to sometimes ting and heart, region death, Shipley’s failed that his hand the'cause trouble, request in on was and that to a member Dr. Thomson make to make that or condition1,Ship- occasions, microscopic examination, in when to as that with’a view somе sup against ley port something Shipley’s certaining was lean would whether witness, pectoris. on angina This This few seconds. by for a disease caused appellees, by authority Sappington’s and cross-examination was unable to -counsel within Dr. waá say shown, power, last heard when had as we have and Dr. is, complaint; existed, pres Shipley that, such that disease make if such testified by or week two whether it was or two micro been detected ence could have years.- year nothing several 1-Ie scopic examination, or a a month was and continued„under cross-examination, persistent might this indicate that in evidence to say autop the nearest he could come at to that of the the time not been done at have Sap- on sy. explanation dates of such occurrences was This was was is no There why several occasions. of the witness, the substance pington examination such testimony of this Another made, witness. not and w.e believe was by Preston, him, requested by H. introduced Mrs. O. was not made or that it under the facts of this testified, appellant, substance, she сase, was circum employ by Tex was as aid nurse might weighed stance .the factory, Company box Sap- at the by that Dr. them inference drawn plant mill, near the shook on pington’s examination make this failure to day, noon, Shipley’s death, prior to about disease such was doubt that because complained she her of what present. came to -and us It seems to be found vyould thought indigestion, gave clearly she him so had testified after Dr. Thomson spirits of lit ammonia a1 some aromatic tle all Shipley’s an either death was caused watеr, pec- and in a seemed angina few seconds he the disease electric shock right. This further testified that witness toris, such disease and that the morning on and after could as cause of Shipley Mrs. told witness that microscope, by means of the been ascertained Dr. planation, Shipley had with his heart Mr. had trouble upon for some ex Sappington called physician night before, but that no representative called, Mrs. did know the why such examination was as to in this Ship- affecting extent trouble the conten overrule not made. We therefоre ley. Mrs. was afterwards recalled jury’s finding tion of the to denied, emphatically, to the stand and mak caused death was1 effect Preston, ing any conversation with such Sirs. an sustained electric shock suffb Mrs. Pres and stated she had never seen eient evidence. prior ton in she saw to her the stand brings appellant’s [2] This to second us further the courtroom. She testified that contention, which, shown, is that as we years age, her husband was 28 o-f about to was not sufficient show that the evidence wife, was never sick since had been she Shipley met his death while in thе course of period years, a ception more than six ex employment, performing ser times, cold or some few of a headache employer’s vices in furtherance inter go and work on known him. he had never failed length, great ests. We shall discuss at account sickness she detail, point, this wholly is because will sum [1] There is no this dispute, as follows: greater length. ques point at above, Shipley As said been tion this connection whether the evi employ Company in period circumstantial other dence wise, approximately yеars, seven warrant testimony pro positive and shows death was the conclusion that shock. during duced an electric We admit that all the time that he had been assistant (Tes. REPORTER 260 SOUTHWESTERN 650 attempt time, plant, not act- foreman at the shook it had he was ing regular get employment, scope nor morn- each interests, o’clock, for the in between 6:30 furtherance of 6:10 and employer's personally, things shape .getting himself, for the but operation promptly when that drill, he received his preparation All em- should blow. or in the 7 o’clock whistle use thе ployees supposed to such recover in this at the shook mill were promptly testimony 7 actual case. The commence service connection with o’clock,, puted theory appellant was, according undis- positive evidence, Shipley’s body of to for a number was found about two hand, indicated, always car, stopped, his little Ford which was mill, stop- shown, usually and as saws and knives we have where it shape ped appliances, proper mill, on his were shook immediately opera- mill his wheels hand almost in сar reach o’clock, tion disputed the un- at the moment of 7 witness, em- far as found. There ployee was another it, get mill when working proceed promptly mill, each testified he had who things put operation more, see that’ months prompt every day, starting of the mill at o’clock. It him saw undisputed evidence, putting further however, him about shown not heard new Ship- was no that there this witness *5 ley’s body in helped Shipley perform was found he that further testified remove the had that he employer. body interest of his the the In from car the words, part machinery removed, no the shook time' of of it was and the mill or connected it was in- where witness indicated body put car, his few tically, found. But back on the tended would itself, prac- necessity the and have for the of legal contempla- already and believe tlie in because holes were the tion, proper, Shipley, pur- the if the frame of car sufficient for the the being upon premises employer pose. of duty, pur- position just mentioned, for From these circumstances pose any purpose the furtherance of the аble counsel for insists — —in employer, probable interests he was within evidence left it more employment, contemplation working of his course was in the act on his car than Employers’ Act, Liability performing any whether he of was he service actually engaged performing met he very given at that not. moment death. counsel We this contention have very consideration, [3] We understand that all and all courts full and careful jurisdictions held that the Workmen’s have but have the conclusion reached can- that we liberally Act should be con nоt the contention. We shown sustain strued, Ship already believe hold that wd custom it necessarily ley per years-to must for plant actual number reach the shook fur formance of some which was in on service about the it time he reached employer’s question, purpose interests at the the therance very give performing employer, moment of his to be services. for his Unques too strict construction to the act. as assistant tionably, premises always plant he had come that mediately began im- the when he employer’s prоsecuting preparations business, operation promptly with the accordance custom of at 7 We o’clock. positive years, posi- several shown and think from these undisputed testimony. facts, infer, But there was also tive were authorized to inference, evidence introduced behalf of act death, morning question, Shipley-met or so before when something employees death, keeping said to one was there his cus- (Ship tom, doing something of the shook mill to the effect that he that he was ley) put body on his intended to little Ford furtherance interests. master’s (his car), Corpus 8f, 27, Juris, p. car little Ford was a skeleton [4] In 22 find § we here, appellant’s theory it was in the this: court, trial at the time he met inference “An should not be drawn attempting use the electric premises uncertain, which but the facts drilling purpose of some hole legitimately may an inference rest in his or' the drill in some said, must, it is be established direct evi- way upon prepar car dence as if facts at issue. put it for the intended follows cannot be based therefore, it, however,per- presumption. It another - VIDAURRI t. MARTINEZ 3.W.) several missible for a to draw court or presumptions conclusions of fact 7115.)* VIDAURRI v. (No. MARTINEZ et al. pre- circumstances, same sumption and in order (Court Appeals An- of Civil of Texas. San indulged, may be Rehearing tonio. March 1924. presumed thing has been ac- believe that 1924.) April 9, Denied tually done, if the evidence it is sufficient may have been leads conclusion that to a <&wkey;>l7 Highways insufficient —Evidence done, be solu- its existence would prescriptive right highway. establish difficulty arising nonexist- from its tion of Evidence as to the use a road ence.” portion country, which an uninhabited fenc- various times had been obstructed es, eral gen- establish that held insufficient to text, support cites author public acquired any right prescriptive judicial emanating high au- decisions therein. thority, of evi- rule we believe <&wkey;4 correctly Highways highway —Essentials of announced in text can dence “prescription” stated. jury, here, applied in view by “prescription” highway To establish a long undisputed proof positive proved general public must be part to' right, uninterrupted adverse claim question, morning in plant, as was owner, permission not on or sufferance of interests, and master’s in furtherance travel has used a certain line well-defined interruption change engaged in the on such substantial occasions years. ten master, was fox his (cid:127)formance of services definitions, [Ed. Note.—For other see Words inference authorize an Phrases, Prescrip- Series, First and Second act, they might jury’s part, upon (In Law).] tion purpose on the he morning was there Highways <&wkey;4Highway by prescription question, he was unimproved acquired not be over or un- interests master’s furtherance occupied prairie land. therefore We his death. met public by pre- A road be established contention. overrule the *6 scription while it runs is the land over which ques- close are the vital These unimproved which unoccupied prairie land, over brief, by appellant tions raised people any direc- travel at inwill All suit. disposition must control this tion. given careful we have contentions &wkey;>I8(l) 4. Easements does —Inconvenience consideration, concluded but have necessity giving implied not create rise to that we It follows be sustained. cannot grant. the lower opinion that land does Inconvenience one’s affirmed, it has been court should be necessity giving implied rise not create grant necessity. a road ordered. <@==>18(4) Implied grant of road 5. Easements — Rehearing. par- Motion necessity On to arise between held not privity title. ties in absence granted appellant’s for oral motion We opening seeking Where one to enforce rehearing, argument its motion highway not over the land of another was argument grantee defendant, held, motion wе be no a right implied grant -way ox disposing road opinion of this our reconsidered privity necessity; be- title again our appeal, concluded parties. tween original opinion correct and overruled, rehearing Rehearing. must be motion On Motion so ordered. we prescription Highways <&wkey;8Highway by In our written state presumption must rest establishment the trial proper authority. deceased, R. L. by prescription showed must rest on the A road employment during by proper any established that was never authority, exist such au- Company prior tо his the Texas thoriiy recently has created. use the occasion to his death the time of him at near Highways <&wkey;>6(2) defeat —Obstruction discharge he owed prescriptive rights be-along need whole way. Company. destroy highway to obstruction of a An undisputed evidence showed acquired rights prescriptive it need fact, so find. we now Aside along .way, is sufficient if the entire this, not been called to has our attention away interrupts the line travel and turns original opin- stated material permanently the travel from the used road way. important ion. in an topic Key-Numbered Digest? see same and KEY-NUMBER in all «.nd Indexes <§E3>For oases *Writ granted of error June