271 F2d 955 United States Fidelity Guaranty Company v. Indemnity Insurance Company of North America
271 F.2d 955
UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant,
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellee.
United States Court of Appeals Fifth Circuit.
November 25, 1959.
James G. Sargent, Houston, Tex., for appellant.
George H. Jewell, Jr., Houston, Tex., for appellee.
Before HUTCHESON, JONES and WISDOM, Circuit Judges.
Raymond Joseph Cucchiarini was a ball player in the employ of the Fort Worth Baseball Club, Inc. The appellee was the workmen's compensation insurance carrier of the Fort Worth Baseball Club. The contract with the player was assigned to the Houston Baseball Association. The appellant was the workmen's compensation insurance carrier for the Houston Baseball Association. While en route from Fort Worth to Houston, in his own automobile, to join the Houston Baseball Association, the player was killed in an accident on the highway. A workmen's compensation award was made by the Industrial Accident Board of Texas to the deceased player's parents against the appellee after a finding that the injury resulting in his death was suffered in the course of his employment by the Fort Worth Baseball Club. This appeal had its origin in a suit of the appellee to cancel the award. The litigation emerged from pleadings, a stipulation and a pre-trial order as a contest between the appellant and the appellee with the sole issue being whether, at the time he was fatally injured, Raymond Joseph Cucchiarini was in the employ of the Fort Worth Baseball Club or the Houston Baseball Association. The district court resolved this issue, primarily one of fact, by a finding that the player was an employee of the Houston Baseball Association. Its finding is free from error and its judgment is