Commercial Standard Ins. Co. v. Marin

• Decision Date: 22 November 1972
• Docket Number: No. 15062,15062
• Citation: 488 S.W.2d 861
• Parties: COMMERCIAL STANDARD INSURANCE COMPANY et al., Appellants, v. Raul MARIN, Jr., Appellee.
• Court: Texas Court of Appeals

Page 861

488 S.W.2d 861

COMMERCIAL STANDARD INSURANCE COMPANY et al., Appellants, v. Raul MARIN, Jr., Appellee.

No. 15062.

Court of Civil Appeals of Texas San Antonio.

Nov. 22, 1972.

Rehearing Denied Dec. 27, 1972.

Clemens, Knight, Weiss & Spencer, Carter, Callender & Branton, Jonathan Sox, San Antonio, for appellants.

Johnson & Christopher, Henry W. Christopher, Jr., San Antonio, for appellee.

CADENA, Justice.

This is a workmen's compensation case in which the trial court ordered the payment of benefits for the death of Santa Emily Marin, an employee of Sigmor Shamrock Services Stations, who was raped and murdered in the darkness of the early morning hours of Sunday, September 14, 1969, as she was in the process of performing her duty as an employee to open her employer's service station for business. The judgment ordering payment of compensation to her surviving husband, Raul Marin, Jr., the appellee here, was based on a jury finding that she died as the result of injuries received in the course of her employment.

The appellant's compensation insurance carrier, Commercial Standard Insurance Company, referred to in this opinion as 'Commercial', assails, by way of no evidence and insufficient evidence points, the finding that Mrs. Marin was injured in the course of her employment. The other appellants, Silvestre Casares and wife, Juanita Casares, surviving parents of the deceased employee, while expressing no dissatisfaction with the 'course of employment' finding, contend that they should be the recipients of the compensation payments because appellee, the surviving husband, had abandoned the deceased employee and refused to support her.

On the day of her death, Mrs. Marin's duties required that she open the service station for business at 7:00 a.m. She arrived at the station prior to 7:00 a.m. and parked her car at the place where she normally parked it on her employer's premises. It is undisputed that she was raped and murdered before she opened the station for business, by Esteban Mendoza, who was employed at a junkyard adjacent to the filling station premises, and who later pleaded guilty to a charge of murder.

The only evidence concerning the manner in which Mrs. Marin met her death is found in the deposition of the killer and in his confession. Mendoza's accounts of the murder are inconsistent. There is evidence which would support a finding that Mrs. Marin and Mendoza had known each other in the past and had engaged in sexual relations; that on the day of the homicide she had willingly accompanied him to the junkyard, where they had previously made love; and that he killed her because he became enraged when she spurned his offer of marriage and announced that she was going to marry someone else, although at the time she was married to appellee. However, it is clear that the jury refused to accept this version of the killing.

The finding that Mrs. Marin was killed in the course of her employment clearly points to the fact that the jury drew the following conclusions, all of which find support in the evidence: After drinking tequila and beer, and taking 'pills' for about 20 straight hours, Mendoza returned to the junkyard during the early morning hours of Sunday, September 14, 1969, where he continued drinking beer, which he had brought with him. At about 6:00 a.m., while it was still dark (Daylight-Saving Time was in effect), he noticed that the lights had gone on at the service station. He saw Mrs. Marin, whom he had observed coming to work in the early morning hours on previous occasions, alight from her car and begin walking toward the service station office. He went on the service station premises, grabbed Mrs. Marin from behind and, holding one hand over her mouth, dragged her to the rear of the junkyard where, overcoming her resistance, he forcibly had intercourse with her. Then, fearing that she would report the incident, he strangled her to death with a belt.

In Mendoza's confession, which was introduced into evidence by Commercial, there is no hint of any prior relationship of any kind between Mrs. Marin and her killer.

Section 1 of Article 8309, Tex.Rev.Civ.Stat.Ann., declares that an injury is not 'sustained in the course of employment' and is, therefore, not compensable, if it is '. . . caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.' Commercial's 'no evidence' and 'insufficient evidence' points assailing the jury's 'course of employment' findings are based primarily on this statutory exclusion.

Only about eight states have enacted statutes, such as the Texas provision referred to in the preceding paragraph, excluding from the category of compensable injuries those injuries which are intentionally inflicted for personal reasons that are unrelated to the employment of the injured employee. But even in the absence of such legislation, it is almost universally held that when the animosity or dispute which culminates in the assault is imported into the place of employment from the injured employee's private or domestic life, the injury is not compensable, at least where the animosity is not exacerbated by the employment. Small, The Effect of Workmen's Compensation Trends on Agency-Tort Concepts of Scope of Employment, 11 NACCA L.J. 19, 23--62 (1953). That is, the approach of the courts to the intentional injury cases, most of which involve assaults, is the same whether or not the particular jurisdiction has a statute similar to ours.

Apprarently, the first Texas case involving an analysis of the intentional injury exclusion is Vivier v. Lumbermen's Indemnity Exchange, 250 S.W. 417 (Tex.Comm'n App.1923), where a night watchman was killed while on duty on his employer's premises. The insurance carrier had succeeded in convincing the Court of Civil Appeals that the injury was not sustained in the course of employment, because the employee's death resulted from an assault by an outsider whose motive was robbery of the employee. The Commission of Appeals rejected this interpretation of the statutory exclusion, holding squarely that the exclusion is applicable only where there existed in the mind of the assailant '. . . antecedent malice . . . causing' the assailant 'to follow the employee and inflict injury upon him, wherever he was to be found, or . . . where the employee by his own initiative provoked a difficulty which caused the other party to feel a 'personal' interest in assaulting him.' 250 S.W. at 418. In support of its conclusion of compensability, the Commission took pains to '. . . hold that the deceased, in the performance of his duties as night watchman, and in the course of his employment, was palced in a position where his environment contributed to his risk and that the fact that he was killed in the discharge of his duties evidenced the further fact that he would not have been killed But for his presence at the plant in the performance of such duties.' Id. (Emphasis added.)

Commercial insists that the opinion of the Commission of Appeals in Vivier is of no more value as precedent than an opinion of a Court of Civil Appeals in a case where application for writ of error has been refused by the Supreme Court with the notation, perplexing to some, 'no reversible error'. This belittling of the precedental weight of Vivier is based on the fact that the Supreme Court adopted only the Vivier judgment, and not the opinion. But, as the Supreme Court pointed out in National Bank of Commerce v. Williams, 125 Tex. 619, 84 S.W.2d 691, 692 (1935), speaking of the authoritative weight of Commission of Appeals decisions in which only the judgment was adopted by the Supreme Court, 'These opinions are not binding on the court in the same sense that the approved and adopted opinions are, but they are given great weight by us, and the courts of civil appeals and all lower courts should feel constrained to follow them, until they are overruled by the Supreme Court.'

The judgment in Vivier was adopted and entered as '. . . the judgment of the Supreme Court.' 250 S.W. at 420. By contrast, when an application for writ of error is refused, 'no reversible error,' the judgment of the Court of Civil Appeals does not become the judgment of the Supreme Court. In fact, the notation, 'Refused, No Reversible Error,' does not even mean that the Supreme Court is satisfied that the Court of Civil Appeals has reached the correct result. It merely means that the application for writ of error presents no error which requires reversal. Rule 483, Texas Rules of Civil Procedure. An erroneous Court of Civil Appeals decision may receive the Supreme Court's 'n.r.e.' blessing simply because the application for writ of error does not present to the Supreme Court the error which renders the judgment incorrect. Wilson, Hints on Precedent Evaluation, 24 Texas B.J. 1037 (1961). The 'n.r.e.' notation, then, is as much a commentary by the Supreme Court on the application for writ of error as it is an evaluation of the Court of Civil Appeals judgment. On the other hand, where a judgment of the Commission of Appeals has been adopted as the judgment of the Supreme Court, this necessarily means that the Supreme Court agrees with the result reached by the Commission.

The judgment of the Supreme Court in Vivier, then, is necessarily a square holding to the effect that the Court of Civil Appeals erred in holding that the intentional killing, by an outsider, of an employee on duty for the purpose of robbing the employee is not compensable. Stated differently, the unequivocal judgment of the Supreme Court in Vivier is that, notwithstanding the language of the intentional injury exclusion, the intentional killing of an on-duty employee, for the purpose of robbing him, is an injury sustained in the course of employment.

The Supreme Court has never overruled, nor has it questioned, Vivier. No ...