Ætna Casualty & Surety Co. v. Block

• Decision Date: 21 June 1940
• Docket Number: No. 1998.,1998.
• Citation: 142 S.W.2d 445
• Parties: ÆTNA CASUALTY & SURETY CO. v. BLOCK.
• Court: Texas Court of Appeals

142 S.W.2d 445

ÆTNA CASUALTY & SURETY CO. v. BLOCK.

No. 1998.

Court of Civil Appeals of Texas. Eastland.

June 21, 1940.

Rehearing Denied July 19, 1940.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Suit under the Workmen's Compensation Act by Aaron L. Block, employee, to set aside an award of the Industrial Accident Board, opposed by the Aetna Casualty & Surety Company, insurance carrier. From an adverse judgment, the insurance carrier appeals.

Reversed and rendered.

R. H. Ratliff and Thomas R. Smith, both of Colorado City, for appellant.

Smith & Smith, of Anson, and Eli Goldstein, of San Antonio, for appellee.

FUNDERBURK, Justice.

Aaron L. Block, employee of L. Zweig doing business under the name of Hub Dry Goods Company, sustained an accidental injury on or about March 1, 1937, in Jones county, Texas. Said employer was subject to the Workmen's Compensation Laws, and the Aetna Casualty & Surety Company was his compensation insurance carrier.

This suit, following the usual preliminary proceedings, before the Industrial Accident Board, was brought by said employee against said insurance carrier to recover compensation for alleged total and permanent disability resulting from said injury and for expenses for medical and surgical aid, treatment and hospitalization. The issues being duly joined by the pleadings, the case was tried by the jury. A verdict upon special issues was returned in favor of plaintiff. From the judgment thereon the defendant has appealed.

Block will be referred to by name, or as "employee"; the Aetna Casualty & Surety Company as "insurer" and L. Zweig and/or Hub Dry Goods Company as "employer."

Appellant's fourth proposition is as follows: "The uncontroverted evidence showing that plaintiff Block was injured while engaged in buying scrap iron and junk for L. Zweig and not while engaged in the retail dry goods business plaintiff was not covered by the policy issued to Zweig upon his employees in a retail dry goods store, and the court erred in not granting defendant's motion for an instructed verdict." This proposition was asserted under the 17th assignment of error, reading as follows: "The court erred in overruling and not sustaining the defendant's motion for an instructed verdict in this case as requested by the defendant in his requested special charge No. 1."

In appellant's brief the above proposition is grouped with the first, second and third propositions and the principal reason urged in support of all of them is to the effect that there was no liability because the employee at the time of his injury was not employed in the usual course of the trade, business or occupation of his employer, as provided in R.S.1925, Art. 8309, sec. 1, prior to the amendment of 1937, Vernon's Ann. Civ.St. art. 8309, § 1. Said statute was as follows: "`Employé' shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, except masters of, or seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of trade, business, profession or occupation of his employer." (Italics ours.) It was established, without dispute, that the employer, at the time the insurer issued to him its policy of compensation insurance, was engaged in the retail dry goods business. The fact was likewise conclusively shown that later, and prior to the time of the injury, said employer engaged in the junk business, meaning the purchase, shipment and sale of scrap iron. The employee was injured while in the course of his employment in the junk business.

In an opinion herein delivered March 22, 1940, which will be withdrawn and this opinion substituted therefor, covering these four propositions, considered together, we said: "The undisputed evidence showed that a part of the employer's business, or one of his businesses, was that of purchasing scrap iron and junk and that the employee received his injury while performing the duties of his employment, in that business, or part of the business, of the employer. The law in force at the time of the accident (since amended) excepted from the statutory definition of employee any `one whose employment is not in the usual course of trade, business, profession or occupation of his...