American Mut. Liability Ins. Co. v. Parker

• Citation: 188 S.W.2d 1006
• Decision Date: 23 May 1945
• Docket Number: No. 6164.,6164.
• Court: Texas Court of Appeals
• Parties: AMERICAN MUT. LIABILITY INS. CO. v. PARKER et ux.

188 S.W.2d 1006

AMERICAN MUT. LIABILITY INS. CO. v. PARKER et ux.

No. 6164.

Court of Civil Appeals of Texas. Texarkana.

May 23, 1945.

Rehearing Denied June 7, 1945.

Appeal from District Court, Bowie County; Robert S. Vance, Judge.

Suit under the Workmen's Compensation Law by B. F. Parker and wife against American Mutual Liability Insurance Company, insurance carrier, for death of plaintiff's son, James L. Parker, who was killed on the premises of his employer and allegedly in the course of his employment by the Lone Star Defense Corporation. Judgment for plaintiff, and insurance carrier appeals.

Affirmed.

Fred K. Newberry and O. H. Atchley, both of Texarkana, for appellant.

Wm. V. Brown, of Texarkana, for appellees.

HARVEY, Justice,

This is an appeal from a judgment rendered by the District Court of Bowie County, Texas, upon a jury verdict, in favor of appellees who brought suit against the appellant under the provisions of the Workmen's Compensation Law of Texas, Vernon's Ann.Civ.St. art. 8306 et seq., by reason of the death of their son, James L. Parker, who was killed on April 28, 1944, while on the premises of his employer, and allegedly in the course of his employment by the Lone Star Defense Corporation. The defense presented on the trial, and now raised by this appeal, was that the employee at the time of the accident that occasioned his death was not in the course of his employment nor engaged in the furtherance of his employer's business.

James L. Parker, an employee of the Lone Star Defense Corporation, had reported for work on the premises of his employer about 3:30 o'clock p. m., on April 28, 1944, his hours of duty being from 4:00 o'clock in the afternoon until midnight. While he and a number of other workers were waiting in the customary assembly place just in front of the office where they clocked in to work, the safety man for the corporation told him and another employee by the name of B. G. Clayton that they would have to get their worn safety heels replaced before going to work that day. In compliance with his requirement, they drove to Texarkana in Parker's car to have new safety heels placed on their shoes. While they were in Texarkana Parker left his car at a repair shop for some type of work to be done on it. They were somewhat delayed in returning to work, the evidence not disclosing whether or not it was due to the wait for the repairs to the car to be made, car trouble on the way back, or to some other cause. After entering the employer's premises and while traveling the usual course to the place where they checked in for work, and when about two hundred yards therefrom, their car was struck by a train and Parker was fatally injured. The evidence shows that Parker carried several other employees that worked on the same shift as he to and from their work daily, for which they paid him a stipulated amount. The accident occurred shortly before midnight, the litigants differing in their views as to the exact time, and the evidence relating thereto will be referred to by us hereinafter in detail.

The question before us for determination is whether or not the facts adduced upon the trial were sufficient upon which to predicate the jury finding that at the time Parker sustained his fatal injuries he was engaged in the course of his employment. In a discussion of this proposition it is pertinent to refer to another jury finding to the effect that from the time Parker left the guardhouse at the gate to the employer's premises to the place of the collision with the train, he had and maintained an intention to work the remainder of his shift that day. Whether or not he was in the course of his employment, and whether he intended to go to work on the occasion in question, were, of course, fact issues for the jury to decide; whether or not there is insufficient evidence upon which to base a jury verdict is a question of law. The testimony shows that Parker reported for work on the day of the accident, and while waiting to clock in he was told that he could not do so until he should have safety heels placed on his shoes. He traveled to Texarkana for that purpose; he left his car at a garage for repairs, but did not get the desired work done, because, as he stated on the return trip, he didn't have time to wait as he had to go to work. Too, he told Clayton that he wanted "to get back out there and work some." In addition, he told Clayton that he had riders to carry home. The evidence further shows that an employee at the plant was paid for the time actually put in and that Parker could have gone to work at any time up to the end of his shift at midnight. It was agreed between the parties to the suit that if J. E. Ponder, the switchman on the train involved in the collision, were present on the trial he would testify that the accident occurred at approximately 11:55 p. m.; B. G. Clayton testified that he did not know the time of the accident but that he imagined it was around eleven o'clock. Neither Parker nor Clayton had a watch with them on the date under discussion; upon their entrance into the premises, Parker stopped his car to inquire of the guard what time it was, and upon returning to the car said, "Let's go." The record does not reflect what he was told by the guard the time was.

The position of appellant is that under the circumstances just above set out there is a valid inference to be drawn from them that Parker entered the employer's premises for the purpose of picking up the employees who were his passengers to and from work, which inference is equally as valid, or more so, than the theory that he was intending to go to work....