Federal Surety Co. v. Ragle

• Decision Date: 25 January 1930
• Docket Number: No. 12256.,12256.
• Citation: 25 S.W.2d 898
• Parties: FEDERAL SURETY CO. v. RAGLE et al.
• Court: Texas Court of Appeals

Page 898

25 S.W.2d 898

FEDERAL SURETY CO. v. RAGLE et al.

No. 12256.

Court of Civil Appeals of Texas. Fort Worth.

January 25, 1930.

Rehearing Denied February 22, 1930.

Appeal from District Court, Jack County; J. E. Carter, Judge.

Suit by the Federal Surety Company against W. E. Ragle and others to set aside an award of the Industrial Accident Board, in which defendant named filed a cross-action. From the judgment rendered, plaintiff appeals.

Affirmed.

Burgess, Burgess, Crestman & Brundige, of Dallas, for appellant.

Grindstaff, Zellers & Hutcheson, of Weatherford, for appellees.

CONNER, C. J.

This suit was instituted by the appellant surety company against the appellee W. E. Ragle to set aside an award of the Industrial Accident Board for 100 weeks compensation for the loss of the sight of an eye. Briefly stated, the evidence shows that appellee was employed by Shaw & Rathke, alleged to be a copartnership engaged in the business of producing oil and gas, and who were subscribers under the Workmen's Compensation Act with the appellant Federal Surety Company; that appellee was a foreman for Shaw & Rathke, who were engaged in drilling an oil well on a farm some six miles from the town of Bryson in Jack county, Tex. Appellee testified that it was his duty to see that men employed upon the lease reported for duty; that no arrangement had been made upon the lease to house and care for employees, and that the greater number, including appellee, went to and fro between the lease and Bryson; that the appellant Shaw & Rathke had not assumed any obligation to provide means of transportation for the workmen, but such workmen as resided in Bryson provided their own means of transportation to and fro, sometimes driving their own automobiles and at other times riding with a coemployee; that on or about the 27th day of December, 1927, while appellee was so employed, and a few minutes before the end of the day's work, he sent one of the employees to the car of a coworker with whom he had arranged to ride home to crank the car and get it ready for the journey; that such employee reported that he was unable to start the motor, and that he (appellee) laid aside his work clothes, repaired to the car, and, in the effort to crank it, a spark plug or something blew out and struck him in the left eye, which resulted in a complete loss of its sight. Such other facts, if any, that may be deemed pertinent, will be stated in connection with our discussion of the case.

The cause was tried before the court without a jury, and resulted in a judgment in favor of appellee for compensation at the rate of $20 per week for the period of 100 weeks beginning on the 27th day of December, 1927. The judgment recites that appellee suffered the accidental injury on the day stated, "while in the course of his employment for Shaw & Rathke in Jack County, Texas; and that at the time of said injury he was engaged in and about the furtherance of the affairs and business of the said Shaw & Rathke, and that the said injury had to do with and originated in his employment with the said Shaw & Rathke and around and upon the premises of the said Shaw & Rathke and that the injury is compensable under the Workmen's Compensation Act of the State of Texas."

Appellant urges that, inasmuch as Shaw & Rathke did not undertake to, and did not, furnish transportation for appellee, and inasmuch as the injury complained of was sustained by him after he had quit work for the day, and while voluntarily engaged in starting an automobile for the purpose of transporting himself from work to town, his injury was not sustained in the course of his employment, and hence the court erred in the judgment rendered.

Article 8309 of the Workmen's Compensation Law, Revised Statutes 1925, reads as follows:

"The term `injury sustained in the course of employment,' as used in this law, shall not include:

"1. An injury caused by the act of God, unless the employee is at the time engaged in the performance of duties that subject him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public.

"2. An injury 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.

"3. An injury received while in a state of intoxication.

"4. An injury caused by the employee's willful intention and attempt to injure himself, or to unlawfully injure some other person, but 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."

We have examined a number of the Texas cases relative to the subject, and they do not seem to be entirely harmonious. In the case of London Guarantee & Acc. Co. v. Thetford, 292 S. W. 857, by Section A of the Commission of Appeals, it was held that, there being no obligation on the part of the employer to transport Thetford to and from the place of work, but having merely given him the privilege of riding in its cars, Thetford's injuries received while riding to work with a fellow servant in such servant's private car was not in the course of his employment within the meaning of the Workmen's Compensation Law; hence the trial court's peremptory instruction in favor of the Guarantee & Accident Company was approved.

In the case of London Guaranty & Accident Co. v. Smith, by the Waco Court of Civil Appeals, 290 S. W. 774, writ of error refused, it was held, where a store clerk was directed by her employer to get supper and return as soon as possible so as to be ready to go with him to select goods, an injury to the clerk while on the way to supper was not "in the course of the clerk's employment" within the Workmen's Compensation Act.

In the case of Boatright v. Georgia Casualty Co., by the San Antonio Court of Civil Appeals, writ of error dismissed, 277 S. W. 802, it was held that a workman employed by two parties, and injured while on the way from the place of one to the other, was not injured in the course of his employment within the Workmen's Compensation Act.

In the case of Royalty Indemnity Co. v. Madrigal, 14 S.W.(2d) 106, by the Beaumont Court of Civil Appeals, it was held that a workman, injured after his day's work, and proceeding upon his chosen route and method, the employer not having contracted to furnish transportation, was not injured in the "course of employment," and hence not compensable under the Workmen's Compensation Law. It does not appear that a writ of error was applied for in that case.

In Ætna Life Ins. Co. v. Palmer, 286 S. W. 283, by the Austin Court of Civil Appeals, writ of error refused, it was held that a factory foreman performing services on his employer's premises was not engaged in the employer's business within the Workmen's Compensation Act when run over by a truck while attempting to enter a friend's automobile on the way to such premises early in the morning to ascertain their suitability for workmen to report for duty.

In American Indemnity Co. v. Dinkins, 211 S. W. 949, by the Beaumont Court of Civil Appeals, writ of error refused, it was held that a petition alleging that deceased, employed as an electrical engineer, registered out for the day at the entrance gate, and started for home to secure rest, and had proceeded a short distance when he was struck by an automobile, was demurrable because it showed that the injury was not sustained in the "course of employment" within the employer's liability and Workmen's Compensation Law.

In the case of Associated Employers' Reciprocal v. Simmons, 273 S. W. 686 by the El Paso Court of Civil Appeals, it was held that an injury of an employee while removing dirt and grease from his person in the bathroom of his employer's bunkhouse after finishing the day's work was not an act in the employer's service or having to do with and originating in the employer's work within the Workmen's Compensation Act. We have not found where this case has been reviewed by the Supreme Court.

However, the following cases would seem to have a different trend. To illustrate: In the case of Consolidated Underwriters v. Saxon, 265 S. W. 143, by Section B of the Commission of Appeals, it appears, in substance, that an employee, during the period of employment, was assaulted and injured by another employee while engaged in a controversy between them over a shovel to be used in the work at hand. It was held that this evidence supported a finding that the injured employee was injured in the course of his employment within the Workmen's Compensation Act. The judgment of the Commission was adopted by the Supreme Court.

In Consolidated Underwriters v. Free, 253 S. W. 941, by this court, writ refused, it was held that the foreman of an oil lease, whose duties included the preservation of peace and order on the lease, was acting within the scope of his employment when attempting to quell a disturbance between a drunken employee and such employee's wife, and injuries...