Cassell v. United States Fidelity & Guaranty Co.

• Court: Texas Supreme Court
• Writing for the Court: Greenwood
• Citation: Cassell v. United States Fidelity & Guaranty Co., 283 S.W. 127 (Tex. 1926)
• Decision Date: 07 April 1926
• Docket Number: (No. 3859.)
• Parties: CASSELL et al. v. UNITED STATES FIDELITY & GUARANTY CO.

Page 127

283 S.W. 127

CASSELL et al. v. UNITED STATES FIDELITY & GUARANTY CO.

(No. 3859.)

Supreme Court of Texas.

April 7, 1926.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by L. P. Cassell and others against the United States Fidelity & Guaranty Company. Judgment for plaintiffs was reversed and rendered by the Court of Civil Appeals (243 S. W. 504), and plaintiffs bring error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

E. E. Clack, M. M. Parks, and W. H. Hall, all of Dallas, for plaintiffs in error.

Seay, Seay, Malone & Lipscomb, of Dallas, for defendant in error.

Cole, Cole & O'Connor and W. L. Kemper, all of Houston, filed amicus curiæ briefs.

GREENWOOD, J.

The question to be determined in this case is whether a serious and permanent injury to plaintiff in error Cassell had to do with and originated in the business of his employer, the Wichita Theater Company. The facts disclose that the employer's stage manager went on the stage, where Cassell was then engaged in the proper discharge of his regular duties as a stage hand, and in fun snapped the stage manager's pistol, supposed to be unloaded, at other employees and at Cassell, when the pistol fired and injured Cassell. Other pistols were kept by the company for use during theatrical performances, but there was no practice of playing with pistols which had been acquiesced in by the company. Declaring the question difficult, the honorable Court of Civil Appeals at Amarillo determined that the injury did not originate in the employer's business, and reversed a judgment of the district court which awarded Cassell a recovery under the Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91). 243 S. W. 504. Section B of the Commission of Appeals in an opinion by Presiding Judge Powell, recommended an affirmance of the judgment of the district court. Since it appeared to us that the weight of authority might be contrary to the recommendation of the commission, we withdrew the case for our own determination. We have now reached the conclusion that our statute does sustain the award of compensation to Cassell, and that the views expressed in the commission's opinion are substantially sound. We shall therefore write no more than a brief supplement to Judge Powell's opinion, which will be published herewith.

For many years before the Texas statutes were enacted Workmen's Compensation Acts reflected the settled policy of England, and our statutes, like those of most American states, seem to have been modeled after the English acts. The English acts of 1897 and 1906 and most American acts provide compensation for personal injury by accident "arising out of and in the course of the employment."

In applying the words, "arising out of the employment," the English decisions are not harmonious. Challis v. London & S. W. Railway, [1905] 2 K. B. 154, 7 W. C. C. 23, 74 L. J. K. B. 571; Fitzgerald v. Clarke & Son, [1908] 99 L. T. 101, 1 B. W. C. C. 200; Mitchinson v. Day Bros., [1913] 1 K. B. 603, 6 B. W. C. C. 190; Shaw (Glasgow), Limited, v. Macfarlane, [1914] 52 S. L. R. 236, 8 B. W. C. C. 385. However, the English courts may perhaps be said to have come to generally recognize the correctness of the declaration in Andrew v. Failsworth Industrial Society, 73 L. J. K. B. 510, 513, [1904] 2 K. B. 32, 35, that:

"If there is under particular circumstances in a particular vocation something appreciably and substantially beyond the ordinary normal risk which ordinary people run, and which is a necessary concomitant of the occupation the man is engaged in, then I am entitled to say that that extra danger to which the man is exposed is something arising out of the employment; and, if in consequence of that extra danger a fatality occurs, I am entitled to say that the section applies and the applicant is entitled to recover."

In short, the accepted test which the English courts have tried to follow seems to have been, Did the injury occur from exceptional exposure to danger incurred through performance of the employee's duty? Pierce v. Provident Clothing & Supply Co., [1911] 80 L. J. K. B. 833-835, 1 K. B. 997; Martin v. Lovibond & Sons, Limited, [1914] 2 K. B. 232; Thom v. Sinclair, [1917] A. C. 127, Ann. Cas. 1917D, 193; Dennis v. White & Company, [1917] A. C., 479, Ann. Cas. 1917E, 325. In determining whether an accident arose out of an injured party's employment, the Supreme Court of the United States has used the test prescribed by these English decisions. Cudahy Packing Co. v. Parramore, 44 S. Ct. 153, 263 U. S. 418, 68 L. Ed. 366, 30 A. L. R. 532.

Our statutes, in requiring that an injury, in order to be compensable, must be one other than those specifically enumerated, and one "having to do with and originating in the work," have in effect adopted the requirement of the English and of most American acts that the injury "arise out of the employment." Applying our statutes and giving them a construction conformable in principle to the leading English decisions, this court held that an injury to one Behnken by being run over by a train at a crossing was compensable, because in doing the work required of him Behnken was subjected to special danger from moving trains at the crossing. Lumbermen's Reciprocal Association v. Behnken, 246 S. W. 72, 112 Tex. 112, 28 A. L. R. 1402. Like application was given our statutes in Scurlock's Case. Kirby Lumber Co. v. Scurlock, 246 S. W. 76, 112 Tex. 124.

Considering every employee peculiarly exposed to such pranks from his coemployees as are inspired by nothing more than a well-nigh universal human craving for fun, and recognizing that such pranks, when careless though innocent, not infrequently occasion bodily harm, we are forced to consider these pranks as a hazard which the employee required to work with others must encounter in the performance of his duties, and hence such pranks constitute a risk reasonably inherent in or incident to the conduct of the employer's business. Clayton v. Hardwick Colliery Co., Lim., [1915] 85 L. J. K. B. 292; Matter of Markell v. Green Felt Shoe Co., 116 N. E. 1060, 221 N. Y. 493.

As said in Chicago, I. & L. Ry. Co. v. Clendennin, 143 N. E. 303, 81 Ind. App. 323:

"It is a matter of common knowledge to employers of labor that men working together, or in near proximity to other workers, will indulge in moments of diversion from work to play pranks on each other; and where the duties of the employment require that an employee perform his work in a factory or mill with or near to other workers, whether such workers are coemployees or not, the risk from accident is thereby, to some extent at least, necessarily increased, and this increased risk is a risk of the employment."

Furthermore, we think that the Legislature of Texas, in declaring what shall not be included within the term, "injury sustained in the course of employment," makes it reasonably plain that it was not intended to put such an injury as that sustained by Cassell without the benefits afforded by our statutes; for the Legislature in excluding injuries "by the act of God" was particular to fix liability for even an injury so occasioned, if the employee was at the time engaged in the performance of duties which subjected him to a special hazard from the act of God causing the injury. With such a plain intimation of legislative purpose not to deny but to fix liability for an injury arising from a hazard to which the performance of Cassell's duties specially subjected him, we would not be justified in doing otherwise than sustaining the award made him by the district court.

It is ordered that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the district court be affirmed.

The following is the opinion by Presiding Judge Powell, Section B of the Commission of Appeals:

The Court of Civil Appeals, speaking through Associate Justice Hall, gives us a very admirable statement of the nature and result of this suit, as follows:

"This was a suit to recover compensation under the Workmen's Compensation Act * * * for an alleged accident which occurred to Cassell, as an employee of the Wichita Theater Company. The appellant company defended upon the ground that the injuries complained of did not have to do with and originate in the business, trade, or profession of the employer, and were not received by Cassell while engaged in or about the furtherance of the affairs of his employer, but were the result of a frolic, horseplay, or other amusement by and between the injured party and other parties and employees by pranking or fooling with a pistol which was accidentally discharged, causing the injuries; that said pistol was not used in nor had anything to do with the business of the employer, and was not connected in any way with the business of the plaintiff's employer. Upon a trial to the court without a jury the court rendered judgment against the appellant. The findings of fact material to the issues to be considered are as follows:

"`(8) I find that on October 9, 1920, and prior thereto, one Walter Crosby was manager of the Wichita Theater Company, and had supervision over the entire work; that the said Walter Crosby had authority to issue orders to the employees; that he had authority to employ and discharge employees and to do anything necessary to the conduct of the business.

"`(9) I find that on the said October 9, 1920, and prior thereto, the said W. C. Shaver was 22 years of age, and was manager of the stage of the Wichita Theater Company, and as such had immediate supervision, direction, and command over the employees of the said stage, including the plaintiff, L. P. Cassell, who was a stage employee. I further find that the said Shaver had authority to issue such orders to the stage employees as were necessary to the conduct of the business, and to employ and discharge the plaintiff, L. P....