Traders & General Insurance Co. v. Allen ( 1986 )

OPINION

DIES, Chief Justice.

This is a worker’s compensation case tried to a jury, where Jerry Gene Allen, plaintiff below, recovered partial and temporary disability which, when translated into a judgment against defendant below, Traders and General Insurance Company, the latter appeals to this Court.

Defendant has five points of error. The first three involve the question of whether plaintiffs injury arose in his scope of employment with Pluss-Tex of Lufkin, Texas. The facts of this case are quite incredible. Pluss-Tex is a chicken processing plant and has a chain link fence around it. One of the streets of Lufkin it faces is Weber Street. Two city policemen were investigating an 18-wheel chicken truck for a traffic violation. Its purpose, no doubt, either was to deliver live chickens or receive processed chickens from Pluss-Tex, since it was parked on Weber Street. The plaintiff was admittedly on duty with Pluss-Tex at the time, and was behind the fence. He was actually checking or fixing lung and entrail pumps used in processing the chickens for market.

For some reason (disputed by the testimony of the plaintiff and the one policeman who testified), the two policemen became enraged at the plaintiff. They drove their squad car through the gate of the fence around Pluss-Tex and up to plaintiff. They neither had an invitation to do this nor probable cause. The police did not know the plaintiff, and he did not know them. Neither were they looking for him. There was no warrant for his arrest.

The officers got out of the squad car; one of them carried a flashlight although it was daylight; both were armed with .357 Magnum handguns. One of the officers (the one who did not testify) then beat the plaintiff to the ground with the flashlight. Then the officers fired their weapons at least six times at the plaintiff who was unarmed. Four of the bullets entered plaintiffs body — in both legs, the right forearm, and chest. Plaintiff was taken to the hospital where surgery was performed. Other surgery has since been performed, and the record reveals still more surgery is probable.

TEX.REV. CIV.STAT.ANN. art. 8309, sec. 1 (Vernon 1967), provides in part:

“The term ‘injury sustained in the course of employment,’ as used in this Act, shall not include:

“(2) An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.”

The cases are legion that the Worker’s Compensation Act must be liberally construed. See TEX.REV.CIV. STAT.ANN. art. 8309, sec. 1, note 3 (Vernon Supp.1986). An employee does not cease to be in the course of his employment because he is not actually engaged in doing what is especially prescribed to and for him if an emergency arises and, thereafter, the employee does what seems necessary and understandable. See Texas Employers ’ Insurance Association v. Thomas, 415 S.W.2d 18 (Tex.Civ.App.—Fort Worth 1967, no writ). If an employee is acting within the course of his employment and the injury is the result of a risk or hazard of the employment, it is compensable. Commercial Standard Insurance Company v. Marin, 488 S.W.2d 861 (Tex.Civ.App.—San Antonio 1972, writ ref’d n.r.e.).

The facts in the Marin case are certainly no more bizarre than the case we review. There, a service station employee was raped and murdered in the darkness of the early morning hours as she was in the process of opening her employer’s station for business. In an exhaustive and eloquent decision the court held the employee’s death was the result of an injury sustained in the course of employment. Certainly, the employee’s rape and murder did not arise out of any facet of her employment.

Often the employee is presumed to be in the course of employment. International Ins. Co. v. Deatherage, 628 S.W.2d 209 (Tex.App.—Austin 1982, no writ).

If one accepts completely the officer’s incredible testimony in this case, one cannot understand why the police car ran through a chain link fence surrounding the Pluss-Tex plant — without probable cause— and then shot an unarmed employee four times. The employee was not wanted by the police and was on duty with Pluss-Tex when he was shot. Apparently the only “reasons personal to” the officer for beating and shooting the claimant arose out of the officer’s objections to the truck parked on Weber Street and the possible retort of claimant. This would be an incident arising out of the employment or, though fortunately remote, a hazard of the job.

At any rate, to escape liability, it was the carrier’s burden to place itself under the section of the statute quoted in this opinion. This it did not do. There is no evidence to support this defense. This point of error is overruled.

Defendant has two other points of error which we find without merit and they are overruled.

The judgment of the trial court is affirmed.

Affirmed.