Anchor Cas. Co. v. Patterson

• Court: Texas Civil Court of Appeals
• Writing for the Court: COLLINGS
• Citation: Anchor Cas. Co. v. Patterson, 239 S.W.2d 904 (Tex. Ct. App. 1951)
• Decision Date: 23 March 1951
• Docket Number: No. 2843,2843
• Parties: ANCHOR CAS. CO. v. PETTERSON.

Page 904

239 S.W.2d 904

ANCHOR CAS. CO. v. PETTERSON.

No. 2843.

Court of Civil Appeals of Texas, Eastland.

March 23, 1951.

Rehearing Denied April 13, 1951.

On Second Motion for Rehearing May 4, 1951.

Further Rehearing Denied June 1, 1951.

Smith, Eplen & Bickley, Abilene, for appellant.

Scarborough, Yates, Scarborough & Black, Abilene, for appellee.

COLLINGS, Justice.

This is a Workmen's Compensation case brought by Jenna Lee Patterson by her father, R. W. Patterson, as next friend, against the Anchor Casualty Company as the insurance carrier for Abilene Hotel Corporation, seeking compensation for an injury alleged to have been sustained while she was in the course of her employment for such hotel corporation in the laundry of the Windsor Hotel at Abilene, Texas. Appellee alleged that while she was working as an employee of such laundry she was instructed to crawl into an electric extractor for the purpose of cleaning it or doing something to assist in the operation of same, and that while she was inside the extractor of the motor started in some manner and the extractor was put in motion; that she was thrown violently about and thereby received the injuries complained of. Appellant denied that appellee suffered any injury; denied that any one in authority in the laundry instructed her to crawl into the extractor, and alleged that if she did so crawl into the extractor and was injured therein, that such injury did not arise out of her employment.

The jury found that appellee, Jenna Lee Patterson, was instructed to crawl into the extractor; that she did crawl into same; that the extractor was put into motion; that she sustained injury thereby, and that such injury was sustained in the course of her employment with the Abilene Hotel Corporation. Based upon the jury findings, judgment was entered for appellee for 225 weeks of compensation at the rate of $9 per week. Anchor Casualty Company brings this appeal.

Appellant urges in various points that the court erred in overruling its motions for instructed verdict and judgment non obstante veredicto and in overruling its exceptions to the court's charge because it is contended by appellant that the evidence conclusively shows that plaintiff's injuries resulted from 'horseplay or fooling' in which appellee took part and did not arise out of or in the course of her employment.

Appellee, Jenna Lee Paterson, was 14 years of age at the time of the alleged injury and at such time was on her employer's premises and place of business during ordinary working hours. She, together with other women employed, worked from time to time at different jobs around the laundry. Appellee testified that just before she got into the extractor that she, her mother and L. L. Bryant, who was the manager of the laundry, were standing around waiting for some clothes to get out of the washer to be put in the extractor; that while they were so standing around, Mr. Bryant said to her, 'O. K. get into the extractor and see if you can lie bown.' She stated that she asked Bryant if he would not turn it on and he said that he would not. In answer to a question as to why Bryant told her to get into the extractor, she said: 'I had an idea that he was just playing with me, * * * cutting up, * * * or fooling.' She testified that she thought he was 'just trying to have some fun * * * I knew it was dangerous, but I didn't think he would turn it on, * * * that he had more sense than that, but he went ahead and turned it on.'

Although appellee first indicated that when Bryant told her to get into the extractor, she did not think it was 'something in connection with her duties,' she thereafter stated that she did not understand the question and testified that it was in connection with her work. She stated that he was her boss and that she did whatever he told her to do; that whenever he told her to work at a certain spot she would do so until he told her to go somewhere else. She was unable, however, to tell what she was doing in connection with her work by crawling into the extractor and when asked about it stated: 'I didn't know what he meant.'

The manager, L. L. Bryand, testified that he had never tried to have any fun with anyone by telling them to get into the extractor. When he was asked if he knew anything about appellee getting into the extractor and if he pushed the button and started the machine, and that she was injured thereby, he testified that he did not know anything about it.

Appellee's father, R. W. Patterson, testified that Bryant told him that 'He asked her to get in there and she got in and he pushed this button on this 'abstractor's and he said he didn't think it would start because the lid was not plum down on it * * *. He said he hated it.'

In order to recover compensation for her injury, appellee had the burden of proving such injury was 'sustained in the course of her employment.' It is uncontradicted that at the time of her injury, appellee was in the employ of Abilene Hotel Corporation; that she was in their place of business where she performed the duties required of her and that the injury was received during regular working hours. It is thought that appellee was 'in the course of her employment' while she was standing around waiting for the clothes to get out of the washer to be put in the extractor. The question to be determined is, whether she was in the course of her employment when at the suggestion or order of L. L. Bryant, she 'crawled' into the extractor. We think it must be assumed that Bryant was engaging in 'horseplay' or 'fooling' when he told appellee to get into the extractor. Appellee's right to recover compensation under such circumstances depends upon whether she also engaged in such horseplay. An injury caused by Bryant's horseplay in which appellee did not participate would be compensable. If, however, she knowingly and willingly engaged in such, she departed from the course of her employment and the injury received as a result thereof is not compensable under the Workmen's Compensation Act. Cassell v. United States Fidelity & Guaranty Co., 115 Tex. 371, 283 S.W. 127, 46 A.L.R. 1137 (Sup.Ct.); Standard Accident Ins. Co. v. Standland Tex.Civ.App., 285 S.W. 878; Richardson v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 46 S.W.2d 439; Texas Indemnity Ins. Co. v. Dunlap, Tex.Civ.App., 68 S.W.2d 664.

As we see it, the matter hinges upon the question of whether appellee got into the extractor in the belief that she was complying with a command of Bryant in connection with her duties in the laundry, or whether she knew that Bryant was engaging in horseplay, and with such knowledge, willingly participated therein.

Appellee was only 14 years of age and stated that she 'didn't know what he (Bryant) meant' when he told her to get into the extractor and she also testified that it 'was something in connection with her duties.' The above evidence may in some degree, tent to show that appellee thought the instruction by Bryant was in connection with her work or at least that she was uncertain and confused and in such state uncertainty, was simply obeying orders of a superior without definite knowledge of or intention to engage in the horseplay. When, however, such testimony is considered together with appellee's other testimony to the effect that 'I had an idea he was just playing with me * * * cutting up * * * or fooling,' we feel that the general effect of her entire testimony is too indefinite and uncertain to serve as a satisfactory basis for the judgment. The inconsistency of appellee's testimony is such that it would probably by conclusive against her if she were an adult person of mature intellect, and the possibility of confusion and uncertainty on her part entirely absent from the record. In any event, the evidence is not, in our opinion, sufficient to support the finding that appellee's injury was sustained in the course of her employment with the Abilene Hotel Corporation.

Appellant's second point complains of the action of ...