United States Casualty Co. v. Hampton, 293 S.W. 260

293 S.W. 260 | Tex. App. | 1927

The appellant urges that the award is erroneous and without authority of law, for the reason that the evidence failed to show the injury in suit arose out of and in the course of his employment, within the Workmen's Compensation Act (Rev.St. 1925, arts. 8306-8309). It is believed the contention should be overruled. The full fact was shown that the appellee, as employee, received a grievous injury to his finger in suppressing a serious affray between two coemployees over the recommendation for discharge of one of them. The appellee was in nowise a party to the quarrel or the fight, and the injury he received was not inflicted intentionally or "because of reasons personal to him." Sole blame for the injury could not be imputed to the appellee. Death caused by knife wounds might have resulted to one of the combatants. The law has so great a regard for human life that it will not impute blameable fault to an effort to preserve it, unless, in the judgment of prudent persons, the effort be done in rashness. Therefore the injury to appellee could be regarded as an accident. The occurrence was wholly upon the premises of the employer. As appears, it occurred "in the engine room," at a time, within regular working hours, "while the men were engaged in tightening the main belt, which drove all the machinery, and which was loose and slipping to such an extent as to interfere with the proper working of the machinery, and which required tightening." Therefore the act in itself done by appellee, of suppressing an affray between two coemployees on the premises during working hours, must be regarded either (1) as a purely moral act, or (2) as an act that might reasonably be done in the service and business of the employer, within the Workmen's Compensation Act. As observed in Honnold on Workmen's Compensation, §§ 101, 116:

"The words `out of' point to the origin and cause of the accident or injury; the words `in course of' to the time, place, and circumstances under which the accident or injury takes place. The character or quality of the accident as conveyed by the words `out of' involves the idea that the accident is in some sense due to the employment. It must result from a risk reasonably incident to the employment."

The test is, Did the injury "have to do with and originate in the business of the employer"? Cassell v. U.S. Fidelity Guaranty Co.,115 Tex. 371, 283 S.W. 127, 46 A.L.R. 1137. Pranks of employees, as set out in that case, is illustrative of acts included in the test. The general rule is laid down in the case of Durham v. Brown Bros., 36 Scot. L. R. 190, as quoted in Ass'n Employers' Reciprocal v. State Industrial Commission, 82 Okla. 229, 200 P. 174:

"A servant does not cease to be in the course of his employment merely because he is not actually engaged in doing what is specially prescribed to him, if in the course of his employment an emergency arises, and, without deserting his employment, he does what he thinks necessary for the purpose of advancing the work in which he is engaged in the interest of his employer."

Extinguishing fire, the issue in that case, and similar acts of preservation of property, are not the limit of the rule. As stated in Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N. El 530:

"There must be some causal relation between the employment and the injury. * * * No fixed rule to determine what is a risk of the employment has been established. Where men are working together at the same work disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference with one another, and many other details which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. Where the disagreement arises out of the employer's work in which two men are engaged, and as a result of it one injures the other, it may be inferred that the injury arose out of the employment. * * * The dispute was concerning the employer's work in which the men were both engaged, and there is evidence tending to show that the claimant was not responsible for the assault."

The following cases are illustrative of an injury within the rule (an injury from an assault): McClure v. Georgia Casualty Co. (Tex.Com.App.) 251 S.W. 801; Cooperage Co. v. Industrial Commission, 285 Ill. 31,120 N.E. 530; In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306; Weekes v. William Stead, Limited, 6 N.C. C. A. 1010; Willis v. Mining Co., 58 Mont. 26, 190 P. 124. As appears in the present case, a causal relation was established between the injury and the employment, and the appellee did what he might reasonably do under his employment. The disagreement and the affray arose out of the employment; namely, the recommendation of discharge of June Miller. Wesley Brown and June Miller were the two fighters. The agreed facts of origin of the difficulty are:

"While the men were engaged in tightening the belt, the subforeman, Wesley Brown, went up to L. M. Blackburn, the foreman, and requested him to give June Miller his time, meaning to discharge him, and stated as his reason for such that `June fights.' On hearing this statement to Blackburn, Miller straightened up from where he was leaning over pulling on the belt and made some remark to Brown. Brown jumped at Miller, and slipped his knife out, and, reaching over Miller's shoulder, cut him in the back. They then clinched and fell. Hence Hampton caught Wesley Brown's hand in which he held the knife, and attempted to separate them, and in so doing got cut on his right hand."

The affray had an effect on the services due from all the employees. It was proven that "when the fight started most of the employees quit pulling on the rope. * * * The fight was delaying the work." Further, it is a significant fact in the present case that Wesley Brown was a "subforeman" of the employer, attacking his coemployee with a deadly weapon while such coemployee was at work. Verbal provocation did not legally justify such attack, and as well such conduct of the subforeman was in violation of his duties to his employer. The circumstances and the relation of the parties would justify and authorize the employer himself, as an implied obligation to afford protection to the assaulted employee, to intervene and suppress the affray by reasonable means. The right of the master exists to interfere and protect his servant's person and interests. I Blackstone Com. 429, 430; 1 Labatt on Master and Servant, § 239, and notes. A servant may likewise do, in virtue of his employment, in his master's interest. As analogous, injuries received by one employee while trying to rescue from danger another employee of a common employer arose out of his employment. Dragovich v. Iron Co.,269 Ill. 478, 109 N.E. 999; Assur. Corp. v. Evans (Tex.Civ.App.)201 S.W. 705; Waters v. Taylor, 218 N.Y. 248, 112 N.E. 727, L.R.A. 1917A, 347. The ruling is based on the proposition that it would be the duty of the employer himself to attempt to rescue the injured employee, and therefor the attempt of the employee who came to the latter's rescue was performed in the interest of and for the benefit of his employer. Therefore the appellee, in suppressing the affray, could be regarded as having done an act that he might reasonably do under his employment in the interest of his employer, proximately causing accidental injury to him. It could be legally regarded as more than purely a laudable moral act.

Appellant next urges that the judgment is erroneous in taxing the costs of the trial court against it, for the reason that the court awarded appellee compensation for a less amount than was awarded him by the Industrial Accident Board. It is argued that "an appeal from the award of the Industrial Accident Board is analogous to an appeal from justice court to a county court," making applicable articles 2065, 2066, R.S. 1925. It is believed that article 2056 of the statute taxing costs against the losing party is the one that has application to the circumstances of the present case. The Industrial Accident Board is legally classed as "an administrative agency or board," and not a "court." Texas Employers' Ins. Ass'n v. Roach (Tex.Com.App.) 222 S.W. 159. Article 2065 is a special statutory provision, and cannot be extended beyond its terms to include such agency or board. Awarding of costs as of course is purely statutory. 15 C.J. § 3, p. 21. The appellant originated the litigation in the courts by resort thereto, and required the injured party to there prosecute the claim to final judgment for relief. The appellant denied any liability at all. The amount of compensation payable was not the sole disputed question. This placed the burden of proof upon the appellee to establish his right to compensation at all. Article 8307, subd. 5; Gorral v. Hamlyn Son, 38 Rawle I. 249,94 A. 877; Armour Co. v. Industrial Board, 273 Ill. 590,113 N.E. 138; In re Savage, 222 Mass. 205, 110 N.E. 283; and other cases. And in such circumstances the costs incurred would follow the judgment in favor of the appellee as of course. If the appellee were entitled to judgment for any amount, he was entitled to costs. There is no equitable ground warranting the taxing of costs otherwise. A different question might arise in case of the tender of true amount allowable, or upon some equitable situation arising.

The judgment is affirmed.