Opinion
Writ of error refused November 30, 1927.
June 22, 1927. Rehearing Denied September 21, 1927.
Appeal from District Court, Liberty County; Thos. B. Coe, Judge.
Suit by the Security Union Casualty Company, insurer, against G. O. Brown and wife, to set aside an award of the Industrial Accident Board, granting compensation to defendants for the death of their son while employed by the Peer Oil Corporation. Judgment for defendants, and plaintiff appeals. Affirmed.
Fairchild Redditt, of Lufkin, for appellant.
E. B. Pickett, Jr., of Liberty, for appellees.
Appellant brought suit against appellees in the district court of Liberty county to set aside an award of the Industrial Accident Board. Trial was had before a jury upon special issues, which they answered in favor of appellees, and judgment was accordingly.
Appellees, G. O. Brown and Nellie Brown, were the father and mother of A. P. Brown, who was killed on March 30, 1926, while in the employ of the Peer Oil Corporation near Liberty, Tex. A. P. Brown was about the age of 17, unmarried, and was killed while engaged in the work which he was required to perform as an employee of the Peer Oil Corporation, by being caught under and crushed by a falling derrick, which was blown down by a severe windstorm. The Peer Oil Corporation was a subscriber under the Workmen's Compensation Act (Rev.St. 1925, arts. 8306-8309), carrying its policy of insurance with appellant. G. O. Brown and Nellie Brown duly filed claim for compensation with the Industrial Accident Board. Liability was denied by appellant upon the ground that the death of A. P. Brown was caused by an act of God, and that at the time he received his injuries resulting in his death he was not engaged in the performance of duties that subjected him to a greater hazard from an act of God than applied ordinarily to the general public. Compensation was awarded appellees for 360 weeks, to be paid in weekly installments. From this award appellant appealed, by bringing this suit to set same aside. It is agreed that all parties have duly complied with the giving of all notices and other formalities required by law.
In answer to special issues submitted to them, the jury found (1) that the deceased, A. P. Brown, was, at the time of his death, engaged in the performance of duties that subjected him to a greater hazard from the act of God responsible for his injury than ordinarily applied to the general public; (2) that his average daily wage was $5; and (3) that it would be a manifest hardship and injustice to deny his surviving parents payment in a lump sum in settlement of the compensation to which they were entitled. The average daily wage of deceased being $5, therefore, based upon that wage, the compensation due appellees would be $17.30 per week for 360 weeks; but, after allowing the proper discount for a lump sum payment, the amount due is the sum of $5,297.68, for which judgment was rendered.
Appellant's first proposition is:
"An employee is not entitled to recover compensation under the Workmen's Compensation Act of the state of Texas, when the undisputed evidence shows that the injuries were due to an act of God, and, at the time they were received, said employee was not engaged in the performance of duties that subjected him to a greater hazard than ordinarily applied to the public generally."
As an abstract proposition of law, the proposition is correct, for it is the pronouncement of the statute, article 8309, Rev.St. 1925. But whether deceased was engaged in the performance of duties that subjected him to a greater hazard than applied ordinarily to the general public was a question of fact for the jury. We do not think that it can be said that the evidence was undisputed that such was not the case. Deceased was engaged in the performance of his usual duties, working in the nighttime at and about an oil derrick. A violent and sudden windstorm came, which blew down many derricks — 80 or more — in a small strip of territory some quarter of a mile wide in the oil field. The derrick at which deceased was working was blown down and upon deceased, killing him. A witness who was working near deceased testified:
"There was a path where it hit; it took every derrick, cleaned everything, but it didn't take all the houses. That was right in the path of the storm. This derrick that was 75 feet from the one that blew down, I don't think it was in the path of the storm; but I do not know. There were not any derricks standing up in different places all over the field; that is, not in that path. There wasn't a derrick standing in that path. I think that path was something around a quarter of a mile wide. If there was a derrick standing down there, I do not remember it. I went down there the next morning. That path extended south from the Peer lease. It took in the Navarro and a part of the Sun's and Gulf's. From what I saw there, the indications were that that wind was traveling east and west. That path led east and west practically."
He further testified:
"There were 75 or 80 derricks blown down in the south Liberty field. It blew down one shack that I know of. I heard other derricks fall. The derricks all crashed pretty close together, just like shooting a gun. As the wind went down the field, the derricks went down That same wind came in contact with the house and shacks that were left standing. It came in contact with everything that was out there that was in its path."
He further testified:
"I have lived in and about oil fields practically all my life. Derricks are very easily blown down. Wind is more apt to blow a derrick down than a house or a shack. I never saw a field that that didn't happen. I was about Spindle Top in the early days. I saw windstorms there such as this. Sometimes it would blow down half of them, and sometimes just one or two."
There was much other testimony going to show that, owing to the construction and height of derricks, they were more easily blown down than houses, or shacks, as some called them. These witnesses testified from personal experience and observation, gained during years of contact with oil fields, that in many instances within their knowledge, where the derricks were almost all blown down, the wind had little effect on houses within its path.
M. Sprague testified that for 21 years he had been, and was then, connected with the Weather Bureau office at Houston, Texas. He said:
"The wind velocity increases as you go aloft. The trees, buildings, and one thing and another retard the wind near the ground. As you ascend, there is nothing to retard the wind. Then it would, in coming in contact with them, have more force against tall objects than it would against low objects. I am familiar with the general appearance of oil derricks in the Gulf Coast country. That would be true as to the force of wind that would ordinarily come in contact with the tops of those derricks, as compared with that which would come in contact with objects only 10 or 15 or 20 feet high. It would be greatly increased as you approach the top of the derrick. It would strike against it with more velocity, as it went higher."
Certainly the windstorm that blew down the derrick and killed deceased was an act of God, yet the record abundantly supports the jury's finding that at the time of receiving his injury and death deceased was engaged in the performance of duties that subjected him to a greater hazard from the act of God than applied ordinarily to the general public — a hazard incidental to the character of the work he was doing and the nature of the equipment with which he must work. A sudden and violent windstorm, only a few hundred yards in width, struck an oil field covered with towering derricks and houses and shacks. The general public was not subject to the hazard that those working at the derricks were, because the evidence, without dispute, shows that persons in and about them were in greater hazard than others not like situated, as the derricks were much more easily blown down than were the houses and shacks exposed to the same wind. United States Fidelity Guaranty Co. v. Rochester (Tex.Civ.App.) 281 S.W. 306 (writ refused, 115 Tex. 404, 283 S.W. 135).
Appellant's second proposition is to the effect that the judgment awarding compensation to appellees in a lump sum is not supported by the evidence, but is contrary to the evidence, and that, if compensation is to be given appellees, then it should be paid in weekly installments.
We think the assignment should be overruled. The evidence was sufficient to raise the issue whether the compensation should be paid in a lump sum, and a special issue submitting that question to the jury was answered in favor of appellees. We shall not set out the testimony on this issue, but will say that in our opinion it was not only sufficient to raise the issue, but ample to support the verdict of the jury that manifest hardship and injustice would result if the compensation was paid in weekly payments.
No error being shown, the judgment is affirmed.