New York Casualty Co. v. Wetherell

BORAH, Circuit Judge.

Mrs. Wetherell sought recovery under the Texas Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., against New York Casualty Company, as insurer, for the death of her husband Thomas W. Wetherell, an employee of A. J. Schill Company. At the close of the evidence the insurance carrier moved for an instructed verdict. The court overruled the motion and submitted to the jury the one issue as to course of employment at the time of the injury. The jury found that the decedent was in the course of his employment when he received the injuries resulting in his death and the court rendered a judgment on the jury verdict in favor of Mrs. Wetherell in the lump sum of $4,749.-63. New York Casualty Company appeals. The errors assigned relate to the refusal to instruct a verdict for the Casualty Company and to the refusal to grant its motion to set aside the verdict and for judgment non obstante veredicto.

The sole question presented by this appeal is the sufficiency of the evidence to raise a jury question on the issue of whether decedent, Wethérell, sustained an injury in the course of his employment by the A. J. Schill Company. The appellant insists that the question must be answered in the negative. Further, that the evidence establishes as a matter of law that decedent’s injuries did not have to do with and originate in the work for which Wether ell was employed, and that such injuries were received at a time when the deceased was not engaged in or about the furtherance of the employer’s affairs or business.

The undisputed facts show that Thomas W. Wether ell had been for more than a year a regular employee of A. J. Schill Company and was such at 6:10 A. M. on the Sunday morning of September 11, 1949, when during his hours of work he was struck and killed by a railroad train on a private spur track at a point approximately 400 yards distant from the plant where tie worked. Wetherell was employed by A. J. Schill Company as a nightwatchman. By the terms of the contract of employment he was required to be in the Schill plant each day and on week ends he was on continuous uninterrupted duty from Saturday at noon until 7:30 o’clock Monday morning but, in accordance with the terms of his contract of hire, he was allowed to go home each Sunday to eat a ¡hot breakfast and pick up his lunch. In regard to his trips to his home, no directions were given him as to the route, manner or time of getting there. He usually walked home around 5 :30 or 6:00 and returned promptly after eating his breakfast. He went to work with the agreement and understanding that he would be paid at the rate of $25 per week and that he would be on company time and was to be paid for the time consumed in going home and returning to work.

Pertinent in arriving at a solution of the question here presented is that portion of the Workmen’s Compensation statute found in Article 8309, Sec. 1, Vernon’s Ann.Civ. St., which provides that the term “injury sustained in the course of employment” as used in the law “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 employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” The Texas courts in construing this statute, following the rule announced by the Supreme Court of Massachusetts in the case of In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, have consistently held that “in order that an employee may recover under the provisions of this law, proof that his injury occurred, while he was engaged in or about the furtherance of the employer’s affairs or business is not alone sufficient. He must also show that his injury was of such kind and character as had to do with and originated in-the employer’s work, trade, business, or profession.” Texas Indemnity Insurance Co. v. Clark, 125 Tex. 96, 81 S.W.2d 67, 69, and authorities there cited.

It is the general rule, established by the great weight of authority, that where an injury occurs at a time not within a contractual exception, employees may not recover compensation for injuries received while going to and from the place where they are to perform labor for the employer. The following are but some of the fnany cases in which compensation has been denied to employees who were injured out of work hours in going to and from work. American Indemnity Co. v. Dinkins, Tex.Civ.App., 211 S.W. 949; London Guaranty & Accident Co. v. Smith, Tex.Civ.App., 290 S.W. 774; Aetna Life Ins. Co. v. Palmer, Tex.Civ.App., 286 S.W. 283; Central Surety & Ins. Co. v. Howard, 5 Cir., 47 F.2d 1049; Maryland Casualty Company v. Kramer, 5 Cir., 62 F.2d 295. But injuries received while going to and returning from work may often be compensable as where, by the terms of the contract of employment, the employee is required to perform services for the employer upon the streets; or where injury occurs at a place furnished by the employer in the interest of his business as the necessary and immediate means of access to where the employee is required to labor, or in such close proximity and relation to the employer’s premises as to be in practical effect a part of the employer’s premises; or where the contract provides for transportation or that the employee should be paid for the time taken in going to and returning from his place of employment; or in cases of salesmen, messengers, deliverymen and the like, who are required and obliged to be continuously on the street in the course of their employment, or to those who are sent on missions for the employer to places other than where they ordinarily work. Where the line is to be drawn in each case is to be determined by the facts themselves. The Texas cases construing and applying the Workmen’s Compensation Law have laid down no exact formula which will solve every case involving the question whether or not a given accident is so intimately related to the employment as to come within the term “injury sustained in the course of employment” as defined by the applicable statute. American Mutual Liability Ins. Co. v. Parker, 144 Tex. 453, 191 S.W.2d 844; Voehl v. Indemnity Ins. Co., 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676, 87 A.L.R. 250.

Street injuries may be compensable where the employee is using the highway in a work incidental to his employment with the knowledge and approval of the employer. See Maryland Casualty Co. v. Kramer, 5 Cir., 62 F.2d 295, certiorari denied 288 U.S. 611, 53 S.Ct. 403, 77 L.Ed. 985; Cf. Fumiciello’s Case, 219 Mass. 488, 107 N.E. 349. Or, as was declared in Kent v. Virginia-Carolina Chemical Co., 143 Va. 62, 129 S.E. 330, where in going to and coming from work the time consumed is paid for or included in the wages. An employee in the course of his employment may do any act of a personal nature that a person might reasonably do, such as quenching his thirst or relieving his hunger, performance of which while at work are reasonably necessary to his health and comfort. These acts are incidental to his service and injuries sustained in their performance arise out of the employment and are compensable under the statute. Casualty Reciprocal Exchange v. Johnson, 5 Cir., 148 F.2d 228 ; 45 Tex.Jur., p. 511 § 108; Rainford v. Chicago City R. Co., 289 Ill. 427, 124 N.E. 643. In Hooper v. Great American Indemnity Co., 5 Cir., 102 F.2d 739, 740, this court declared: “The Workmen’s Compensation Law should not be hedged about with strict construction, but should be given a liberal construction to carry out its evident purpose. The cause of the injury is not restricted or confined to the exact duties prescribed for the employee. Whatever may be incidental to or connected with what the employee must do within the period of employment must necessarily belong to the employment.”

The danger that Wetherell encountered was peculiar to the long period of uninterrupted duty and the necessity of going 'home to secure nourishment gave rise to it. It was not the danger of an ordinary member of the public crossing the private way on his own business, but was the subjection of Wetherell to that danger by the conditions of his employment. When once, as here, it is clear that the accident was the result of a risk necessarily -incidental to the performance of the employee’s work, all inquiry as to the frequency or magnitude of the risk is irrelevant. Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192.

The Supreme Court of Tex-as has declared that: “An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business. As tersely put by the Supreme Court of Iowa:

“ ‘What the law intends is to protect the employee against the risk or hazard taken in order to perform the master’s task.’ Pace v. Appanoose County, 184 Iowa 498, 168 N.W. [916] 918.” Lumberman’s Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. 72, 73, 28 A.L.R. 1402; Jones v. Casualty Reciprocal Exch., Tex.Civ.App., 250 S.W. 1073, 1074. Allowing Wetherell to return to his home for a hot meal during a forty-three and one half hour stretch of continuous uninterrupted duty doubtless contributed to the efficiency with which he was enabled to discharge the duties owing his employer. The employer agreed to this condition in order to induce Wetherell to work on this job. It was an important part of tEeir contract of employment. The injury occurred during work hours at a time and place where Wether ell might reasonably be in doing that which was incident to the conduct of his work. Gallaher v. United States Fidelity & Guaranty Co., Tex.Civ.App., 77 S.W.2d 312, 316. It may not therefore be said that the injury did not arise out of and in the course of his employment.

Our conclusion is that the jury had substantial evidence upon which to base its findings that the deceased received his injuries while in the course of his employment.

Judgment affirmed.