American Motorists Ins. Co. v. Steel, 15128

• Decision Date: 07 April 1950
• Docket Number: No. 15128,15128
• Citation: 229 S.W.2d 386
• Parties: AMERICAN MOTORISTS INC. CO. v. STEEL.
• Court: Texas Court of Appeals

Page 386

229 S.W.2d 386

AMERICAN MOTORISTS INC. CO. v. STEEL.

No. 15128.

Court of Civil Appeals of Texas, Fort Worth.

April 7, 1950.

Rehearing Denied May 5, 1950.

Bryan, Stone, Wade & Agerton; G. W. Parker, Jr., and John E. Thomason, all of Fort Worth, for appellant.

Wm. B. Townsend, and M. Hendricks Brown, both of Fort Worth, for appellee.

SPEER, Justice.

Appellee Robert Steel, an employee, sued to recover workmen's compensation from appellant American Motorists Insurance Company, the carrier of insurance for the employer, Consolidated Vultee Aircraft Corporation, based upon an alleged accidental injury to an eye. Appellee was awarded a judgment on a jury verdict and the carrier has appealed.

The jury found in response to special issues that appellee sustained an accidental injury to his eye on about July 5, 1948 while in the course of his employment with his employer; and that he had 'good cause' for having failed to file his claim with the Industrial Accident Board within six months from the date of the injury.

Appellant's eight points of error may fairly be divided into three groups, the first of which complains because (a) it was entitled to its requested peremptory instruction since there was no testimony showing appellee had sustained a compensable injury; (b) the court having denied its request for a peremptory instruction it was entitled to have its timely motion for judgment non obstante veredicto sustained; and (c) the evidence was insufficient to support the jury finding in special issue three that appellee sustained an injury in the course of his employment.

We have devoted a great deal of study to the record in this case. Both sides admit in their briefs they have been unable to find a case precisely like it. After a diligent independent investigation we have found none. As could be expected, each of the litigants presents cases claimed to be analogous from which deductions are made to sustain their respective contentions. From these arguments and the application of principles, we are forced to the definite conclusion that good lawyers differ widely as to the final result which must necessarily follow.

There is no material conflict in the testimony to the effect that appellee sustained an injury to his eye. The time, conditions and manner in which he received it form the basis of the respective contentions, that is, appellee contends the injury is compensable and appellant contends it is not.

Without going into unnecessary details, it can safely be said that for several years appellee had been working for his employer in its plant as a riveter, and as such he used various kinds of drills to make holes in many kinds of metal preparatory to riveting the metals together in the construction of airplanes. In the performance of his required duties, the shavings produced by drilling each day settled all over his person, in his clothes, hair and eyebrows. The employer provided no change of clothes for appellee in which to work and he had to work, if at all, in his own street clothes; it provided no room or locker to enable him to furnish or make a change of clothes; no brushes or vacuum appliances were furnished to remove the accumulated shavings from his person. The employer furnished a large parking area (perhaps a mile long) for its many employees to park their cars in, while on duty. Appellee lives in north Fort Worth and drove from home each day to begin his work and when his shift was ended drove home, an estimated distance of about one mile inside the parking area and four or five miles to his home. On the occasion in question his work had ended and with the metal shavings on his person he had gotten to within about a block of his home and estimated that it had been about fifteen minutes since he left the plant; at that time and place something struck him in the eye which he said felt like a needle, causing him great pain. In an affirmative answer to a question propounded by his counsel, he said it must have been one of the metal shavings he had on his person which struck him in the eye. His conclusion thus expressed is not determinative of whether or not the substance that struck his eye was one of the metal shavings. There were other circumstances relied upon by appellee on that question, yet, for the time being, we think it beside the question now under consideration. Appellant contends that the testimony was insufficient to show that the foreign substance in his eye was one of the shavings, but argues that even if it was, the injury was not compensable under the law in this case. If appellant is correct, it should have had an instructed verdict, otherwise not.

In arriving at a solution to this question, we must keep in mind that the Workmen's Compensation Act was passed by the Legislature as the remedial act to former rights and remedies vouchsafed at common law. That an injured employee could, when he comes within the law, have immediate and certain relief without regard to primary or contributory negligence or assumed risk; and also that his compensation, when an injury occurs under prescribed conditions, is awarded upon broader and more humane rules. To accomplish the purposes for which the law was enacted, the court will give its provisions the most liberal construction in favor of injured employees it will reasonably bear.

Pertinent to the case before us, Article 8306, section 20, Vernon's Ann.Civ.St., as amended in 1947, provides that 'injury' as used in the Act shall be construed to mean 'damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom * * *'; and second subdivision 4 of Article 8309, sec. 1, Vernon's Ann.Civ.St., 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.'

It is the settled doctrine in this state 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. Naturally this general rule does not apply to employees whose duties involve traveling over the country nor to those who are sent by their superiors on missions for the employer to places other than where they ordinarily work. None of these exceptions to the general rule exist in this case.

In view of the specific definition of compensable injuries set out by our laws, as hereinabove quoted, construction by courts of compensation laws in those jurisdictions where such definitions do not exist is not helpful to us.

Our compensation laws are more nearly like those of Massachusetts and our courts have uniformly followed the doctrine laid down by the Supreme Court of that State in the case of In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306. In the cited case the court said: 'In order that there may be recovery the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. * * * It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It arises 'out of' the employment, when there is apparent to the rational mind * * * a causal connection between the conditions under which the work is required to be performed and the resulting injury.'

In keeping with the rule announced in the McNicol case, supra, our courts have often construed the Texas Workmen's Compensation Act as embracing two separate and distinct elements and that both must appear to have existed at the time of an injury before compensation will be allowed. The elements are: (1) The injury must have occurred in the course of employment, or, as sometimes stated, must be shown to have originated in the work, and (2) must have occurred at a time when the injured party was engaged in or about the furtherance of the affairs or business of the employer. The establishment of one alone is not sufficient but the law requires both. These constructions have occurred in cases principally where injuries were sustained while going to and from places where the employee performed his task at a designated place. The courts have consistently applied various applicable rules in these cases, such as traveling over roads or highways not under the control and management of the employer and when the employee is exposed to hazards common to the public.

Some of the cases in which compensation has been denied under conditions above pointed out and which followed the doctrine announced in the McNicol case, supra, are: American Indemnity Co. v. Dinkins, Tex.Civ.App., 211 S.W. 949, 956-957, writ refused; London Guaranty &...