Ætna Life Ins. Co. v. Palmer

• Citation: 286 S.W. 283
• Decision Date: 16 June 1926
• Docket Number: (No. 6992.)
• Parties: &#198;TNA LIFE INS. CO. v. PALMER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

286 S.W. 283

ÆTNA LIFE INS. CO. v. PALMER et al.^*

(No. 6992.)

Court of Civil Appeals of Texas. Austin.

June 16, 1926.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit by Mrs. Laura J. Palmer, for herself and as next friend of her minor children, against the Ætna Life Insurance Company, to set aside an award of the Industrial Accident Board refusing compensation for the death of John P. Palmer. Judgment for plaintiffs, and defendant appeals. Reversed and rendered.

Taliaferro, Cunningham & Moursund, of San Antonio, and White, Wilcox, Graves & Taylor, of Austin, for appellant.

Dickens & Dickens, of Austin, for appellees.

BLAIR, J.

Mrs. Laura J. Palmer, for herself and as next friend of her minor children, sued appellant to set aside an award of the Industrial Accident Board refusing them compensation on account of the death of John P. Palmer, husband and father, and recovered judgment.

The sole question on this appeal is whether there is any evidence to support the verdict of the jury and the judgment of the court that deceased sustained the injuries which resulted in his death "while engaged in or about the furtherance of the affairs or business of his employer," under the Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, art. 5246—1 et seq.). As general foreman of the Austin Sash & Door Company, a manufacturing plant situated in the city of Austin, he was covered by a policy issued to the company by appellant under the Workmen's Compensation Act. He supervised some 33 other employés of the company, and was subject to call by his employer at any time day or night, for the seven days of the week, and for his services received a weekly salary. The plant had been shut down because of the extreme cold weather then prevailing, and in the late afternoon of January 27, 1925, he was instructed by the president of the company to be at the plant early the following morning to ascertain if weather conditions would permit the workmen to report for duty at their usual hour, 8 o'clock. This was done in order to save expenses of the workmen who would report unless notified by deceased that the premises were not suitable. The company was also anxious to commence operations as soon as possible, on account of some urgent contracts it had on hand. Pursuant to these instructions, deceased left his home on Sabine street about 7:10 o'clock, for the premises of his employer, walking down Red River street, a public street in the city of Austin, and the most direct and practical route for him to travel, and, while attempting to get into an automobile of a friend which had stopped for him, he was run over by another automobile or truck and killed. The accident occurred about 4 blocks from the employer's premises. The employer had nothing to do with the furnishing of any means of transportation to the plant. Neither the owner of the car nor the truck had any connection with the employer. Deceased rode often with the friend who stopped for him to his place of employment, the friend being employed at an establishment a short distance beyond the place where deceased was employed.

A general rule, established by the great weight of authority, is that, in absence of special circumstances, the act does not apply to a workman going to and from his work. Articles 5246 — 5 and 5246 — 82, Vernon's Ann. Civ. St. Supp. 1918; Corpus Juris Pamphlet on Workmen's Compensation Acts, § 68, also section 75d; Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Texas Employer's Ins. Ass'n v. Bailey (Tex. Civ. App.) 266 S. W. 192; American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 954; L. R. A. 1916A (Annotations) 331, 332; L. R. A. 1917D (Annotations) 114-132.

The...