To make the position of the court clear on the issues of law arising on the facts of this case, we add the following conclusions to the able opinion prepared by Mr. Justice O’QUINN:
*614.. On the evidence as a whole, there 'is no issue against.the conclusion that the fight, in its origin; had to do with and originated in the work- of Burrus Lumber Company, and that the beginning of the fight originated while appellant and Terrell were engaged in and about the furtherance of the business of Burrus Lumber Company — - all within, the provisions of second Subsection 4 of Sec. 1, of Article 8309, R.C.S. 1925: “An injury caused by the employe’s willful intention-and attempt to injure himself, or to. unlawfully injure some other person, but shall include all other injuries of .every kind-and character having to do with and originating in the work, business, trade or profession of the employer received by an employe while engaged in or about the furtherance of the affairs or business -of his employer whether upon the employer’s premises or elsewhere.” But appellant was not injured in the first stages of'the fight. Had he been injured at that time there would be no issue of law against his claim as a compensable injury. Appel-lee so'- concedes. He was injured some moments later, after Terrell had walked away from the place where the fight originated. Judge O’Quinn gives the facts on this point.-
Now the point at issue is whether appellant’s injury was caused by an attempt on his part to. “unlawfully injure” Terrell. As a construction of the law of the facts of this case on this issue, Justice O’QUINN advances the two following prop-ositionsi (1') “ * * * if the minds of reasonable persons, in considering the evidence, could or might reach the conclusion that Terrell had not abandoned the fight,” then whether appellant’s claim is compensable is a question of fact for the jury. This issue must be determined from appellant’s point of view since his actual intent at the time of his injury is the controlling question. If, on the evidence as a whole, a reasonably prudent man, situated as was- appellant, would have believed that Terrell had riot abandoned the fight, then appellant was not injured in an unlawful attempt to injure Terrell within the meaning of second Sub-section 4, Section 1, of Art. 8309, copied above.
We give Justice O’QUINN’S second proposition that if “the' whole affair was but one continuous fight,” then whether appellant’s claim is compensable is a question of fact for the jury. In- order to convict appellant, as a matter of law, of an attempt to “unlawfully injure” Terrell, thereby taking his claim out of our Workmen’s Compensation Act, it must so clearly appear under all the facts and circumstances in evidence that reasonable minds could reach but the one conclusion that appellant’s act in approaching Terrell just before he was injured, armed and with threatening gestures, was voluntary and that his mind was functioning with sufficient normality to form a design and willful intent to injure Terrell. If appellant’s, act in arming himself after he had been struck by Terrell and following Terrell to the place where Terrell struck and injured him were in response to a passion beyond his control, aroused by the assault made upon him by Terrell, and which completely overturned his reason from the time he started to approach Terrell until Terrell struck him, then his assault on Terrell— his approach to Terrell with threatening gestures — must be regarded as involuntary, and as free of that criminal or intentional element necessary under second Sub-section 4, of Sec. 1, of Art. 8309, to preclude his right to recover. In this conclusion we have used in,substance the language of the court in Indemnity Ins. Co. of North America v. Scott, Tex.Com.App., 298 S.W. 414. See also Casualty Rec. Exchange v. Parker, Tex.Com.App., 12 S.W.2d 536; Cherry v. Magnolia Pet. Co., Tex.Com.App., 45 S.W.2d 555; Consolidated Underwriters v. Scott, Tex.Civ.App., 272 S.W. 520; Traveler’s Ins. Co. v. Culpepper, Tex.Civ.App., 82 S.W.2d 1054. Construing these cases, Lawler in Texas Workmen’s Compensation Law, says, page 143: “From a consideration of these cases, it would seem that the reason for refusing recovery in any case held to fall within the operation of one of the exceptions, is that the injury received bore no. causal relation to the conditions of the employment.” The controlling proposition of law in this case is whether the injury received by appellant bore -a causal relation to the conditions of his employment, and this issue must be determined on the principles of law discussed above.
The court is in agreement that error was committed in instructing the verdict against appellant, and in Justice O’QUINN’S conclusion that the judgment of the lower court .should be reversed and the cause remanded for a new trial.