American Mutual Liability Insurance v. Parker ( 1945 )

It is my opinion that if the deceased, who was regularly employed by the Lone Star Defense Corporation, went upon the premises for the purpose of performing his regular duties for said employer and was injured while thus on the premises, as the evidence seems to indicate, then he was injured in the course of his employment within the meaning of the Workmen's Compensation Law, and the insurance carrier is liable, even though he did not actually go to work after entering the premises. He would be entitled to be protected while on the premises. But the majority opinion holds that in traveling across the premises to pick up the riders, the deceased was working in the interest of the Lone Star Defense Corporation, and seems to imply that this alone would entitle him to the protection of the Workmen's Compensation Law, even though he had not entered the premises for the purpose of working at his regular job. His duty to haul the other employees arose by virtue of a private contract between himself and the other employees. The Lone Star Defense Corporation had nothing to do with that contract. If his only purpose in entering the premises was to pick up the other employees, then he was not in the course of his employment as an employee of the Lone Star Defense Corporation at the time of his injury. I deem it proper thus to express my views on this subject lest my action in approving the majority opinion be misunderstood.

Opinion delivered December 12, 1945.

ON REHEARING. Petitioner takes the position in its motion for rehearing that we based our decision of this case upon a ground not pleaded by respondents in the trial court and upon a theory different from that upon which the trial was conducted. The specific criticism made of respondents' petition is not that it did not allege sufficient facts to support a recovery of compensation, under the law as announced in our opinion, but that it contained an additional allegation which the evidence did not sustain. This allegation was that at the time of the accident Parker was "reporting for work." The jury, in answer to a special issue, found that, from the time Parker left the guard house at the entrance of the gate until he sustained fatal injuries, he had and maintained the intention to work the remainder of the swing shift that day. It was our view that this answer had no reasonable support in the evidence and we therefore disregard it. In answer to another special issue, the jury found that Parker sustained the injuries while in the course of his employment. We affirmed the judgment below in his favor on that finding.

Respondents alleged all facts material to a recovery and then added an allegation of an immaterial fact. Likewise, the jury answered all material issues in respondents' favor and then answered an immaterial one in accordance with their contention.

2 It is elementary that an appellate court should not decide a case upon a theory different from that upon which it was pleaded and tried, but to disregard an immaterial allegation of a petition and to disregard an answer of the jury to an immaterial issue as being surplusage is not a violation of that rule. The rule with regard to immaterial allegations in pleadings is stated in Collins v. Chipman, 95 S.W. 666, 673, error denied, in this language:

"* * * The rule is general, except as to allegations of essential description, that whatever may be alleged by the pleader as a cause of action or ground of defense, it is only necessary to prove such allegations as are necessary to constitute a cause of action or establish the defense. Whatever else is alleged is regarded as surplusage, and need not be proven. * * *"

See also Mike v. Leath, 26 S.W.2d 726; Texas N.O. Ry. Co., v. New, 95 S.W.2d 170, 33 Tex. Jur. pp. 655-6, Section 198.

The rule is equally well settled that jury findings on immaterial issues may be disregarded. Miller v. Fenner, Beane, Ungerleider, 89 S.W.2d 506, error dismissed; Crowley v. Chapman, 260 S.W. 231; Ferguson v. Kuehn, 246 S.W. 674.

Petitioner relies upon Safety Casualty Company v. Wright, 138 Tex. 492,160 S.W.2d 238. The distinction between that case and the instant one seems clear. No question of immaterial allegations or immaterial findings was involved in that case. The opinion of this court on rehearing in that case discloses that the pleadings were insufficient to state any cause of action at all. The employee pleaded facts which, if established, would not have supported a judgment in his favor. He did not plead too much, but too little.

Motion for rehearing overruled.

Opinion delivered January 23, 1946.