Employers Mut. Liability Ins. Co. v. Konvicka
| Decision Date | 02 August 1951 |
| Docket Number | Civ. A. 5051. |
| Citation | 99 F. Supp. 433 |
| Parties | EMPLOYERS MUT. LIABILITY INS. CO. OF WISCONSIN v. KONVICKA et al. |
| Court | U.S. District Court — Southern District of Texas |
Fulbright, Crooker, Freeman & Bates, Newton Gresham, of Houston, Tex., for plaintiff and cross-defendant.
C. H. Chernosky and Adolph Pavlicek, of Houston, Texas, for plaintiffs.
Plaintiff, Employers Mutual Liability Insurance Company of Wisconsin, the insurer of A. O. Smith Corporation, has sued the legal beneficiaries of John Konvicka, an employee of such corporation, seeking to set aside an award made to them by the Texas Industrial Accident Board for damages resulting on account of the accidental injury and death of John Konvicka on November 18, 1948, in Harris County, Texas. Defendants herein have filed a Cross-Action.
The case was tried upon stipulations, admissions, and oral and documentary evidence, before the Court without a jury.
Hereafter, for convenience, the Employers Mutual Liability Insurance Company of Wisconsin will be called "the Insurance Company"; the A. O. Smith Corporation will be referred to as "the Corporation", and John Konvicka will be called "the Deceased" or "Konvicka".
The corporation owns and operates a large manufacturing plant, about 12 miles from the city limits of the City of Houston, where it employs many workers who live in Houston, as did Konvicka. The Corporation did not provide housing facilities near its plant for the use of the employees, nor did it pay additional compensation for, or furnish, transportation between Houston and the plant to such employees. There was no convenient means of public transportation available to the plant and, as a result, many employees of the Corporation rode to and from their work in their own cars. Other employees rode in cars belonging to their fellow employees, on a share-a-ride basis. This custom was well known to the Corporation, which provided an open parking space for the use of its employees in parking their cars. The parking space so furnished did not have a smooth surface but, on the contrary, it had many holes and ruts in it. Konvicka rode to and from his work with a fellow employee who parked his automobile on the lot provided for such purpose by the Corporation.
A heavy rain had fallen on November 18, 1948, and as a result the automobile in which Konvicka rode to and from his work was drowned out. This employee, together with Konvicka and another fellow worker, attempted to start the stalled automobile by pushing, after cranking had failed to start it. There was not sufficient space on the parking lot to get up enough speed to start the stalled motor and the car was pushed on to the public highway which runs alongside the Corporation's property. Konvicka and his fellow worker stood on the bumpers of the two cars, and when the stalled motor finally started Konvicka attempted to step down to the ground. In so doing, he fell and was injured, some 200 feet from the premises of the Corporation. He died later that day from the injuries which he received in the fall.
The Insurance Company, while admitting that Deceased sustained fatal injuries on the date alleged, claims that at the time of the accident Deceased had finished his day's work and left the premises of his employer and was no longer in the scope and course of his employment; that the accident did not occur under circumstances which would make his injury and death compensable under the Texas Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., therefore, there is no liability on the part of such insurer.
On the other hand, the legal beneficiaries of Deceased assert that the accidental injury occurred about and near the place of employment and arose out of and in the course and scope of such employment. They further say that the injury was received under circumstances which had to do with, and originated in, the work of the employer and while Deceased was engaged in and about the furtherance of such employer's affairs and business and, for that reason, comes within the provisions of the Texas Compensation Act.
Discussion.
Vernon's Annotated Civil Statutes, Article 8309, Section 1, provides: "The term `injury sustained in the course of employment,' as used in this Act, * * * 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."
Both the State and Federal Courts have repeatedly held that the Workmen's Compensation Statute shall be liberally construed in favor of an injured employee so as to effectuate the broad coverage for which the statute was originally enacted. In Lumbermen's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W. 72, at page 73, 28 A.L.R. 1402, the Supreme Court of Texas said: See, also, the case of Grube v. Associated Indemnity Co., 5 Cir., 187 P.2d 119.
The Insurance Company relies strongly upon the case of American Motorists Ins. Co. v. Steel, Tex.Civ.App., 229 S.W.2d 386, 389, and the cases there cited and discussed. In this case the Ft. Worth Court of Appeals said: * * *"
In Cassell v. United States Fidelity & Guaranty Co., 115 Tex. 371, 283 S.W. 127, at page 131, 46 A.L.R. 1137, the Supreme Court of Texas, speaking through Justice Greenwood, held: ...
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Ferguson v. Sohio Petroleum Co., 39729
...some of which are extremely liberal, the injury occurred on the premises of the employer. In Employers Mutual Liability Insurance Company of Wisconsin v. Konvicka, D.C., 99 F.Supp. 433, also cited by appellant, the automobile was pushed from the premises of the employer into a road, paralle......
- Lyons v. United States, Civ. No. 5510.