American Indemnity Co. v. Dinkins

• Court: Texas Court of Appeals
• Writing for the Court: Brooke
• Citation: American Indemnity Co. v. Dinkins, 211 S.W. 949 (Tex. App. 1919)
• Decision Date: 15 April 1919
• Docket Number: (No. 449.)
• Parties: AMERICAN INDEMNITY CO. v. DINKINS.

211 S.W. 949

AMERICAN INDEMNITY CO. v. DINKINS.

(No. 449.)

Court of Civil Appeals of Texas. Beaumont.

April 15, 1919.

Additional Findings of Fact, April 30, 1919.

Appeal from District Court, Jefferson County; A. E. McDowell, Judge.

Suit by Mrs. A. P. Dinkins, for herself and as next friend for her two minor children, Jack Dinkins and Emma Marie Dinkins, against the American Indemnity Company, to recover compensation under Employers' Liability and Workmen's Compensation Law. Judgment for plaintiffs, and defendant appeals. Reversed, and judgment rendered for appellant.

Minor & Minor and Sam C. Lipscomb, all of Beaumont, for appellant.

Jas. A. Harrison, of Beaumont, for appellees.

BROOKE, J.

This suit was instituted by Mrs. A. P. Dinkins for herself and as next friend for her two minor children, Jack Dinkins and Emma Marie Dinkins, against the American Indemnity Company to recover workmen's compensation under the provisions of the Employers' Liability and Workmen's Compensation Law of the State of Texas, as embodied in chapter 103, p. 269, General Laws of 1917 (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246—91).

Plaintiffs alleged that the defendant issued a policy of insurance to the Magnolia Petroleum Company, insuring employés working at the Magnolia refinery at Beaumont against injuries resulting in death and received and sustained in the course of employment, and that the policy so issued was to insure the liability and pay the compensation provided for in said Employers' Liability and Compensation Act; that the Magnolia Petroleum Company employed more than 1,500 persons, and had insured its employés with the defendant, American Indemnity Company; that A. P. Dinkins on September 30, 1917, was an employé of the Magnolia Petroleum Company as an electrical engineer at its refinery at Beaumont, Tex., and had been continuously in the service of said Magnolia Petroleum Company in such capacity for several years; his duties required him to work until 12 o'clock at night, at which time he would leave the refinery, go to his home for rest and refreshment, and return the next day to continue his duties; that the Magnolia Petroleum Company, as above said, employed about 1,500 men at said refinery, and worked same in shifts, making three shifts every 24 hours; that when the men in one shift would be going out, the men in the next shift would be coming in, and these employés met and passed each other in coming in and going out of the refinery; that the refinery was inclosed, and all employés were required to enter and leave the refinery at the big entrance gate, where a watchman was stationed, who let them in and out, and where the employés punched in as they entered and punched out as they left the refinery; that the road to the refinery was laid out and built by Jefferson county at the instance of the owners of the refinery, and that the Magnolia Petroleum Company, in addition to its tax for road and bridge purposes, contributed both material and labor in the construction of said road; that said road is the only paved or shelled road leading to the refinery, and was the road used exclusively by its employés, who ride in and on automobiles, bicycles, and motorcycles, and is the road provided and maintained by the Magnolia Petroleum Company for the use of its employés going to and coming from their work at the refinery; that in going to and coming from their work the employés met and passed each other in great numbers, and that employés, especially those changing shifts at 12 o'clock at night, were subjected to dangers in using said road not applicable to the general public at large.

It is further alleged that on September 20th, at about 12 o'clock at night, A. P. Dinkins, deceased, punched out for the day at the refinery gate, as he was required to do, got on his motorcycle, and started for home to secure needed rest and refreshment, so he could pursue his labors the next day, and was riding on and along said paved road, and had gotten a short distance from the refinery gate, when he was struck by an automobile traveling on said road, and sustained injuries which resulted in death; that the automobile which struck Dinkins was being driven by Frank Ellis, an employé of the Magnolia Petroleum Company, who was on his way to work; that plaintiffs are the sole and exclusive beneficiaries of A. P. Dinkins, deceased. Plaintiffs further alleged that the Industrial Accident Board of Texas, upon application of plaintiffs for compensation under said act, fully acquitted and discharged the defendant from all liability on account of the death of A. P. Dinkins, and this suit was filed May 13, 1918, to set aside the award for said Industrial Accident Board and to recover the compensation provided for in the act.

To plaintiffs' petition the defendant filed a general demurrer and special exceptions and a general denial. By special answer defendant admitted that it was insurer for the Magnolia Petroleum Company, but alleged that A. P. Dinkins was not engaged in any work or employment for the Magnolia Petroleum Company at the time of his injury, and that the said Dinkins was not under the control and was not performing any service for his employer at the time of the injury, and that said injury did not have to do with, nor originate in, the work or business of his employer, and was not received by said Dinkins while engaged in or about the furtherance of the affairs of his employer; that said Dinkins was on a mission of his own, and far removed from his place of employment, when said injury occurred; and specially denied that the road or street upon which Dinkins was injured was in any way controlled by the Magnolia Petroleum Company; and denied, further, that the road at that point where Dinkins was injured was provided and maintained by the Magnolia Petroleum Company for the use of its employés; and further denied that the employés of Magnolia Petroleum Company were required to use said road or any other particular road in going to and coming from work, but that, on the other hand, said employés were free to choose any one of several highways of travel in going to and coming from said refinery. Defendant further specially denied that the terminus of said road was at the gate of the Magnolia Petroleum Company, and alleged that the place of injury was one-half mile west of the refinery, on a street within the corporate limits of Beaumont, Tex., and that said road constituted a part of one of the main highways from Beaumont to Orange, Tex.

Judgment was rendered August 5, 1918, in favor of plaintiffs for $4,800; motion for a new trial was filed August 6, 1918; and amended motion for new trial was filed September 4, 1918, and in the order overruling same defendant was granted 90 days after adjournment of the term within which to prepare and file a statement of facts and bills of exception. The term at which this case was tried expired September 28, 1918; transcript and statement of facts were filed December 4, 1918, and this cause is properly before the court for review.

In the first assignment of error it is complained that the trial court erred in overruling defendant's general demurrer in its original petition. Under this assignment there is a proposition to the effect that—

"The petition shows on its face that Dinkins did not sustain his injury in the course of employment, but, on the other hand, it affirmatively shows that he was injured after he had severed his relation of employé."

We quote from plaintiffs' original petition as follows:

"On or about September 30, 1917, at about 12 o'clock at night, A. P. Dinkins, deceased, punched out for the day at the refinery gate, as he was required to do, got on his motorcycle, and started for home to secure needed rest and refreshment, so he could pursue his labors the next day, and was riding on and along said paved road, and had gotten a short distance from the refinery gate, when he was struck by an automobile traveling on said road."

Further, in paragraph 5, plaintiffs allege that "the said Dinkins was an employé of the Magnolia Petroleum Company as an electrical engineer"; thus excluding the idea that his duties as an employé required him to go outside of the plant for any part of the work.

Section 1, part 1, of the Employers' Liability and Workmen's Compensation Law of 1917, provides for compensation to be paid by the insurer for "injuries sustained in the course of employment"; and section 1, part 2, of the Act, p. 292, defines the phrase, "injury sustained in the course of employment," as follows:

"The term `injury sustained in the course of employment,' as used in this act, shall not include:

"(1) An injury caused by the act of God," etc.

"(2) An injury caused by an act of a third person intended to injure the employé because of reasons personal to him," etc.

"(3) An injury received while in a state of intoxication.

"(4) An injury caused by the employé's willful intention and attempt to injure himself, or to unlawfully injure some other person, but 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 employé while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employer's premises or elsewhere." General Laws 1917, p. 292.

The main question in this case is whether or not Dinkins sustained injuries in the "course of employment," as that term is defined in the Texas Employers' Liability Act.

We are of the opinion that it is the duty of this court to give to the terms of the act the utmost liberality of which they are legally capable, to the end that the beneficent purposes of the act may be effectuated. However, we must remember that the purpose of the Workmen's Compensation Law, as set out in the preamble of the act, was to make more certain the recovery of compensation for injuries to...