I respectfully dissent.
Inasmuch as the facts of this case are set out in detail in the majority opinion, there is no need to state them here.
The jury found that Deatherage died on February 15, 1978, and that his death was caused by injuries received in the course of his employment. Based on this verdict, the trial court entered judgment granting the deceased's surviving claimant and the plaintiff below, the award in question. I would affirm the judgment.
The majority of this Court held that appellee failed to prove that the deceased died during the hours of work. In my judgment this holding is erroneous for several reasons.
In the first place the evidence in the case, whether direct or circumstantial, supports the jury's verdict, Kentucky Central Life Insurance Co. v. Fannin, 575 S.W.2d 76 (Tex.Civ.App. 1978, no writ). The deceased was found at a place where he might properly have been during the hours of his work. *Page 551
Indeed, there is evidence in the record that the deceased, by his very presence on the plant location, served as a deterrence to burglary or vandalism, and the jury so found by inference.
Moreover, in my opinion, the majority has misplaced the burden of proof by placing it on appellee rather than on appellant. Appellee's spouse was found dead where his duties required him to be. If he wasn't killed in the course of his employment, it was up to appellant to prove otherwise. Scott v. Millers Mutual Fire Ins. Co. of Texas, 524 S.W.2d 285 (Tex. 1975). *Page 677