Fidelity & Casualty Co. v. McLaughlin, 7313.

• Decision Date: 31 January 1940
• Docket Number: No. 7313.,7313.
• Court: Texas Supreme Court
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. McLAUGHLIN.

Page 955

135 S.W.2d 955

FIDELITY & CASUALTY CO. OF NEW YORK v. McLAUGHLIN.

No. 7313.

Supreme Court of Texas.

January 31, 1940.

Error to Court of Civil Appeals, of First Supreme Judicial District.

Suit by the Fidelity & Casualty Company of New York against J. T. McLaughlin to set aside an award under the Workmen's Compensation Act, in which defendant filed a cross-action. Judgment for defendant was affirmed by the Court of Civil Appeals, 106 S.W.2d 815, and plaintiff brings error.

Affirmed.

Baker, Botts, Andrews & Wharton and Albert P. Jones, all of Houston, for plaintiff in error.

Albert J. DeLange, of Houston, and Morris & Bennett, of Beaumont, for defendant in error.

CRITZ, Justice.

This is a workman's compensation case. It appears from the record that J. T. McLaughlin was injured in the course of his employment as an employee of Phoenix Engineering Corporation. The injury occurred on February 28, 1934, at New Iberia, in the State of Louisiana. The suit is sought to be maintained in this State under the extraterritorial provisions of our Workmen's Compensation Law. All preliminary steps necessary to invest the district court with jurisdiction were duly had. No good purpose would be served by detailing same here. Trial in the district court, where the case was tried with a jury, resulted in a judgment for McLaughlin, and against Fidelity & Casualty Company of New York, the employer's Texas compensation insurance carrier. On appeal by the insurance carrier to the Court of Civil Appeals, the judgment of the district court was affirmed. 106 S.W.2d 815. The insurance carrier brings error.

We shall hereinafter refer to McLaughlin as plaintiff, and to Fidelity & Casualty Company of New York as Casualty Company.

By several assignments of error the Casualty Company contends that the judgments of the two lower courts should be reversed, and judgment here rendered for it, because the facts of this record show indisputably that, at the time of his injury, plaintiff did not occupy the status of a Texas employee of Phoenix Engineering Corporation, incidentally or temporarily sent to a foreign state, Louisiana, to perform labor. The statute involved in the above assignment is Section 19 of Article 8306, R.C.S.1925, as amended, Vernon's Ann.Civ.St. art. 8306, § 19. Such statute is generally referred to as the extraterritorial part of our Workmen's Compensation Statutes. So far as applicable here, such statute reads as follows:

"Sec. 19. (Sec. 1) If an employee, who has been hired in this State, sustain injury in the course of his employment he shall be entitled to compensation according to the Law of this State even though such injury was received outside of the State, and that such employee, though injured out of the State of Texas, shall be entitled to the same rights and remedies as if injured within the State of Texas, except that in such cases of injury outside of Texas, the suit of either the injured employee or his beneficiaries, or of the Association, to set aside an award of the Industrial Accident Board of Texas, or to enforce it, as mentioned in Article 8307, Sections 5-5a, shall be brought either * * *.

"Providing that such injury shall have occurred within one year from the date such injured employee leaves this State; and provided, further, that no recovery can be had by the injured employee hereunder in the event he has elected to pursue his remedy and recovers in the state where such injury occurred."

In the case of Texas Employers' Insurance Association v. Volek, Tex.Com. App., 69 S.W.2d 33, 35, Section A of the Commission, speaking through this writer, construed the above statute, and held: "A careful reading of the above statute shows that it has effect to extend the provisions of our Workmen's Compensation Law to any employee `who has been hired in this State,' even `though injured out of the State of Texas,' if such injury be received within one year from the date he leaves the state. It will be noted that the statute only purports to cover `an employee who has been hired in this State.' This clause certainly does not have reference to the place where the hiring was originally made. The primary purpose of our Compensation Law is to protect our own workmen. The purpose of the extraterritorial provision is to protect, under our law, employees who are such in this state under some contract of hiring, and who are incidentally or temporarily sent out of this state to perform labor or services."

We will adhere to the construction of the above-quoted statute as announced in the Volek case, supra. Our compensation statutes were enacted primarily to protect Texas workmen and employees. The extra-territorial provisions thereof were enacted to protect Texas workmen or employees— that is, workmen or employees who occupy such status in Texas under some contract of hiring, who are incidentally or temporarily sent out of this State by their employers to perform labor or services. Of course, under the plain terms of the statute, all extraterritorial protection thereunder ceases unless the employee is injured within one year from the date of his leaving the State.

This record shows that plaintiff was injured at New Iberia, in the State of Louisiana, while in the employment of Phoenix Engineering Company and working in its warehouse there located. Plaintiff contends that at the time of his injury he occupied the legal status of a Texas employee of the above-named employer, incidentally or temporarily sent to New Iberia, Louisiana, to perform labor or services for such employer. The Casualty Company, as above stated, contends that this record shows indisputably that at the time plaintiff was injured, he did not occupy such status. The district court determined this issue in favor of plaintiff. Such determination must stand, unless the evidence in this record shows the contrary as a matter of law. We shall now determine that question. In doing so we consider the evidence in its most favorable light for the plaintiff. This is because of the findings of the trial court in his favor.

Plaintiff was sworn as a witness in his own...