Fritzmeier v. Texas Employers' Ins. Ass'n

• Decision Date: 16 March 1938
• Docket Number: No. 1723-7006.,1723-7006.
• Citation: 114 S.W.2d 236
• Parties: FRITZMEIER v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Supreme Court

114 S.W.2d 236

FRITZMEIER v. TEXAS EMPLOYERS' INS. ASS'N.

No. 1723-7006.

Commission of Appeals of Texas, Section B.

March 16, 1938.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit under the Workmen's Compensation Act by W. H. Fritzmeier against the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board. Judgment for the plaintiff was reversed and judgment was rendered by the Court of Civil Appeals, 85 S.W.2d 1079, and the plaintiff brings error.

Judgment of the Court of Civil Appeals reversed, and that of the trial court affirmed.

Caldwell, Gillen, Francis & Gallagher, of Dallas, for plaintiff in error.

Ramey, Calhoun & Marsh, of Tyler, and Ben A. Harper, of Houston, for defendant in error.

TAYLOR, Commissioner.

Suit was by W. H. Fritzmeier against Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board. Judgment was for plaintiff, and was reversed and rendered by the Court of Civil Appeals. 85 S.W.2d 1079.

The jury found that Fritzmeier's injuries were sustained in the course of his employment. The court instructed the jury in connection with the issue submitting the injury that the term "injuries sustained in the course of his employment" meant, in the language of the statute, "injuries of every kind and character having to do with and originating in the work, business, trade and profession of an employer received by an employe while engaged in or about the furtherance of the affairs or business of the employer, whether on the premises of said employer or elsewhere." The ground upon which the judgment was rendered is there was no evidence the injury was received in the course of employment.

Fritzmeier was employed as a tank builder for the F. H. E. Oil Company, Inc., on what was known as the Seven-Pines job several miles distant from Gladewater. He did not live on the lease where the work was being performed, and no facilities were there to make it possible for the workmen to remain overnight on the lease. Fritzmeier resided at Gladewater in a trailer house, and rode from Gladewater to the lease each morning and back each evening with Sam Winston, a truck driver in charge of the truck being used on the job. Fritzmeier and the other employees who lived at Gladewater were instructed by one of the foremen on the work to meet at a designated place at Gladewater at a stated time in order to ride the truck and reach the work on time. On the morning Fritzmeier was injured, he, together with the other employees that were waiting in compliance with the request of the foreman, left Gladewater between 6 and 7 o'clock on the day of the injury. While en route the injury was sustained.

The foregoing is a free paraphrase of some of the facts stated by the Court of Civil Appeals to be undisputed. The record contains other evidence which, considered in the light most favorable to the injured employee, discloses the supplemental facts that follow. The truck in which Fritzmeier was riding at the time of his injury was under the control of the employer. At the time of plaintiff's injury it was being operated by an employee of the company according to its instructions. The Seven-Pines job was located about 15 miles from Gladewater, several miles off the highway. There were two gangs working on the job; the "bull gang" and the "riveters." In erecting the tank the "bull gang", of which Fritzmeier was a member, would get the steel in position. This had to be done before the riveters could proceed with their work. If any member of the "bull gang" was late or did not show up the work had to stop, which delayed its progress. One of the foremen stated upon the trial it was "of special concern" that the "bull gang" be on time for the work, and that it was not easy to get a crew, for the reason the "facilities were too far away"; that "a workman could not do a day's work and walk the distance out there and the distance back in a day"; that "the boys living in Gladewater and vicinity travelled back and forth from Gladewater to the Seven-Pines job on a company truck," and that Fritzmeier rode the truck with the other boys; that the men worked from 9 to 14 hours a day; that prior to the time of beginning work on the Seven-Pines job the employer was working on what was known as the Cherokee job; that Fritzmeier came to him about the time they were winding up the Cherokee job "to know about transportation from Gladewater to the Seven-Pines job," and that he told him and the other employees "to ride the truck"; that they "were told to meet in a body and have one meeting place so they would not have to be stopping all along the road and picking them up at different places"; that the meeting place was "in front of Slim's Café" in Gladewater. In the process of finishing the Cherokee job and moving to the Seven-Pines job it was necessary to haul materials from the former to the latter. One of the foremen told the men on the Seven-Pines job the day before the accident to be at Slim's Café on time the next morning so that they could stop by the Cherokee job to pick up some bolts and rivets. In compliance with the instruction, Fritzmeier and the other employees customarily riding the truck went by the Cherokee job, picked up several kegs of rivets and other materials, and were proceeding from there over the regular route to the Seven-Pines lease when the truck was sideswiped by another going in an opposite direction, causing plaintiff's injury. Fritzmeier, by the company's prearrangement, rode the truck every day from the time he began work on the Seven-Pines job until he was injured, as did the other employees in his gang, except one, who sometimes went in his own car. He was picked up each time at the place designated by the foreman and in accordance with the plan mentioned.

Article 8309 of the Revised Statutes 1925, omitting the provisions not material here, reads:

"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 employe 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 employe because of reasons personal to him and not directed against him as an employe, or because of his employment.

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

"4. An injury caused by the employe'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 employe while engaged in or about the furtherance of the affairs or business of his employer ...