100 S.W.2d 385 | Tex. App. | 1936
. This suit was instituted by Bessie May Montgomery, widow of Claude E. Montgomery, against the Texas Indemnity Insurance Company, compensation insurance carrier for the Atlantic Pipeline Company. After the filing of the suit Paul A. Montgomery, minor son of Claude E. Montgomery, intervened through Bessie May Montgomery, his mother, as next friend. It was a suit to set aside an award óf the Industrial Accident Board, before which Bessie May Montgomery and Paul A. Montgomery had claimed compensation insurance on account of the death of said Claude E. Montgomery. The plaintiffs alleged that Claude E. Montgomery, on the 28th of December, 1931, was an employee of the Atlantic Pipeline Company, of which the Texas Indemnity Insurance Company was the compensation insurance carrier, and that on said day and in the course of his employment, while performing his duties as nightwatchman for said company, he inhaled poisonous gas fumes, which caused his death. Compensation was sought in the amount Of 60 per cent., of the average weekly, wages of the deceased for a period of 360 weeks in a lump sum, which amount, less the discount for present payment, was alleged to be $6,814. Before the trial, Susie Montgomery, mother-in-law of Bessie May Montgomery, intervened in the suit claiming that she had paid the funeral expenses of said Claude E. Montgomery in the amount of $250, and asked that she be reimbursed in that amount out of any recovery in the suit. Defendant’s answer was by general demurrer and general denial.
It was shown that the deceased, Claude E. Montgomery, a man 24 years of. age, was employed as a night watchman by
Upon the findings of the jury the trial court entered judgment in favor of the plaintiffs, as prayed for, except that compensation was not allowed the minor Paul A. Montgomery in a lump sum.
Opinion.
The appellant strenuously insists that the trial court should have sustained its motion for an instructed verdict and that this court should reverse and render judgment in its favor on the ground that the evidence failed to establish that the deceased came to his death while in the course of his employment, and, further, that the evidence conclusively and as a matter of law. established that at the time of his death he had turned aside from his employment as a night watchman and was engaged in appropriating his employer’s gasoline.
We have made a very careful study of the evidence in this case and conclude that under the evidence there was an issue of fact for the jury as to whether or not Montgomery came to his death in the regular course of his employment. In view of the fact that this case must be reversed and remanded for a new trial on the grounds discussed below, it would not be proper for us to here review the testimony. Suffice it to say that the evidence was such that it would have sustained a finding of the jury to the effect that Montgomery did not receive his injury in the course of his employment. However, the evidence was wholly circumstantial. There were no eyewitnesses. It is shown that Montgomery had been a faithful employee. His reputation was good. The testimony of the witnesses does not harmonize in all respects, and it was for the jury to weigh various facts and circumstances in evidence, and determine from them whether Montgomery met his death, in the line of duty. In 17 Tex.Jur. 908, it is stated that “the circumstances which amount to sufficient proof of a disputed fact can never be a matter of general definition;
Appellants complain of the following improper argument of counsel: “It is also perfectly plain, notwithstanding they try to soften it up and smear it over and veneer it somewhat, that the only way this insurance company can win this case is for this jury to convict this deceased father and husband of theft, and let it stand in the records of this court room, this court house, for all eternity, that the father of this little boy and the husband of this good woman was engaged in .petty theft, in the act of stealing thirty cents worth of trashy gasoline, at the time he met his death. We can’t escape that.” There are also other instances of alleged improper argument which are made the basis of assignments. That the above argument on the part of plaintiffs’ counsel constitutes reversible error under the recent holdings of our courts is, we think, beyond question. For one thing, the argument to the effect that the only way the Insurance Company could win the case was for the jury to convict the deceased father and husband of theft clearly had reference to the issue submitted to the jury as to whether or not the deceased was engaged in taking gasoline from the tank at the time he met his death. It, in effect, told the jury that if in response to that issue it should be found that the deceased was so engaged, a recovery would be defeated. Such argument has been repeatedly condemned by our courts. See McFaddin v. Hebert, 118 Tex. 314, 15 S.W. (2d) 213; Fidelity Union Casualty Co. v. Cary (Tex.Com.App.) 25 S.W.(2d) 302; Bankers’ Life Ins. Co. v. Butler (Tex.Civ.App.) 73 S.W. (2d) 664.
The appellee has presented two cross-assignments which we do not deem it necessary to discuss in view of the fact that this case is being remanded for another trial, as they will probably not arise again.
For the reasons above discussed, the judgment of the trial court is reversed, and this cause is remanded for a new trial.