City of Austin v. Johnson

• Decision Date: 05 June 1975
• Docket Number: No. 7720,7720
• Citation: City of Austin v. Johnson, 525 S.W. 2d 220 (Tex. Ct. App. 1975)
• Parties: CITY OF AUSTIN, Appellant, v. Duc Tu JOHNSON et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 220

525 S.W.2d 220

CITY OF AUSTIN, Appellant, v. Duc Tu JOHNSON et al., Appellees.

No. 7720.

Court of Civil Appeals of Texas Beaumont.

June 5, 1975.

Rehearing Denied July 10, 1975.

Richard E. Tulk, Austin, for appellant.

Joe Colbert et al., Austin, for appellees.

DIES, Chief Justice.

Plaintiff below--appellee-the widow of Elbert Byron Johnson, brought suit for death benefits under the Workmen's Compensation Act . It was her theory that on September 9, 1971, her husband, an employee of the City of Austin, learned that his job would be terminated after October 1, 1971. That the emotional stress and worry caused by this news caused or contributed to cause a fatal heart attack on September 20, 1971. Trial was to a jury which found an injury in the course of his employment as alleged, and judgment was given for plaintiff from which the City of Austin perfects this appeal.

One of the City's points contends there is no evidence that Johnson's alleged injury had to do with and originated in the work, business, trade, or profession of City. We sustain this point.

Vernon's Tex.Rev.Civ.Stat.Ann. art. 8309, section 1(4) provides that the term 'injury sustained in the course of employment' 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.'

This definition embraces two elements: (1) the injury must be of such kind and character as had to do with and originated in the employer's work and (2) have been suffered while the employee was engaged in or about the furtherance of the affairs of the employer. McKim v. Commercial Standard Ins. Co., 179 S.W.2d 357, 358 (Tex.Civ.App.--Dallas 1944, writ ref'd); Texas Indemnity Ins. Co. v. Clark, 125 Tex. 96, 81 S.W.2d 67 (Tex.Com.App.1935, opinion adopted); Smith v. Texas Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192 (Tex.Com.App.1937, jdgmt adopted).

In Kimbrough v. Indemnity Ins.Co., 168 S.W.2d 708, 709 (Tex.Civ.App.--Galveston 1943, writ ref'd), we find:

'The injury must be brought about by a risk which is incidental to and arises out of the task the workman has to do in fulfilling his contract for service, and to which the employee would not be subjected but for the employment contract for service.'

See also Safety Casualty Co. v. Wright, 138...