General Ins. Corp. v. Wickersham

• Decision Date: 01 December 1950
• Docket Number: No. 15192,15192
• Citation: 235 S.W.2d 215
• Parties: GENERAL INS. CORP v. WICKERSHAM.
• Court: Texas Court of Appeals

Page 215

235 S.W.2d 215

GENERAL INS. CORP v. WICKERSHAM.

No. 15192.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 1, 1950.

Rehearing Denied Jan. 5, 1951.

Cantey, Hanger, Johnson, Scarborough & Gooch, J. Kirby Smith and J. Lee Johnson III, Fort Worth, for appellant.

J. Elwood Winters and Ernest May, Fort Worth, for appellee.

McDONALD, Chief Justice.

The appeal is from is judgment awarding workmen's compensation for the death of appellee's husband. Trial was to the court without a jury.

Three points of error are relied on. First, it is argued that the injury was not of a kind and character having to do with and originating in the work, business, trade or profession of the employer; second, that the court erred in fixing the wage rate; and third, that the mission on which the employee was engaged at the time of his injury was not in furtherance of or necessarily or reasonably inherent in or incident to the conduct of the work or business of the employer.

Appellee's husband was employed as a janitor in a restaurant. His customary hours of work were from 10:30 or 11:00 in the evening to about 6:00 the following morning. He was also employed by another employer to act as a night watchman during the same hours in a suite of upstairs offices which were located above the restaurant premises. When he would come to work at the restaurant he would usually get the key to the upstairs offices from its customary resting place alongside the cash register in the restaurant, and make a visit to the offices, after which he would return to the restaurant. He came to the restaurant at about the usual time on June 9, 1949, began to sweep, and shortly afterwards left the restaurant. The evidence does not show whether he then went to the upstairs offices or not, but it does show without dispute that he went to an office on the third floor of a building across the street from the restaurant and used the telephone for some undisclosed purpose. The last mentioned office was one which stayed open all night, and the employee was acquainted with the man in charge of such office. He left this office, and in no longer time than would have been necessary to re-cross the street to the restaurant, entered the front door of the restaurant. Almost immediately after he went through the door of the restaurant he fell to the floor, which at the point of the fall was covered with tile. He died about four hours later. An autopsy revealed head injuries which the medical witnesses said caused his death. The evidence shows that he was in good health when he left home about 9:30 o'clock that evening; the man in charge of the office where the employee used the telephone just before he fell said that he appeared then to be in good physical condition; and the owner of the restaurant, who saw the employee just as he was falling, said that the employee did not then have any blood on him and did not give the appearance of having been hurt. There is no evidence of any injury having been received elsewhere.

The trial court found that as the employee returned to the restaurant he was about to resume sweeping when he suffered a dizzy spell and fell to the floor; that in the fall his head may have struck the cigar counter or door hinge, and that 'it certainly struck the tile floor.' He found that the employee's skull was fractured by the blow against one of these hard objects, and that the fracture caused death.

We doubt seriously if there is any evidence to support the finding of the court that the employee had a dizzy spell which caused him to fall. We are very much inclined to think that it is only by surmising and speclulating that it can be said that he had a dizzy spell, or that a dizzy spell caused him to fall, and that the more reasonable interpretation of the evidence is that the fall is unexplained by any evidence in the record, and ought to be treated as an accidental one. But for the purposes of this opinion we shall assume that the fall was caused by a dizzy spell.

As is said in National Automobile & Cas. Ins. Co. v. Industrial Accident Commission, 75 Cal.App.2d 677, 171 P.2d 594, 595, 'the authorities are overwhelming that where the injury is contributed to by some factor peculiar to the employment it arises out of the employment even though the fall has its origin solely in some idiopathy of the employee.' See the many cases there cited. Our Supreme Court has so held in Garcia v. Texas Indemnity Ins. Co., 146, Tex. 413, 209 S.W.2d 333.

But, to quote again from the opinion in the California case first cited: 'The courts in other jurisdictions seem about evenly divided on the question whether a traumatic injury suffered by his body striking the floor or ground is compensable where the fall was cinduced by the employee's idiopathic condition.' Reference is made to the cases there cited. 171 P.2d at page 595.

The conflicting views in the cases where the employee is injured by falling on the floor or ground, as distinguished from falling from ladders, or into holes, or against objects other than the floor or ground, are exemplified by the majority and dissenting opinions in Andrews v. L. & S. Amusement Corporation, 253 N.Y. 97, 170 N.E. 506, where compensation was denied, and in Savage v. St. Aeden's Church, 122 Conn. 343, 189 A. 599, where compensation was awarded. Other cases could be cited on both sides of the question, but the reasons given in them for denying or allowing compensation were substantially the same as those given respectively in the two opinions just cited, and in the dissenting opinions setting out it each case the contrary view.

The cases denying compensation do so on the theory that a floor presents no risk or hazard that is not encountered everywhere, and that such risks and perils as they do present are only those which confront all members of the public. The cases allowing compensation do so on the theory that the injury need not be the product of a peril or hazard which exposes the employee to extraordinary risk, in order to be compensable, and that the hazard presented by the floor renders the injury compensable, not because it should have been foreseen or expected, but because it is a hazard that is peculiar to the employment, and is one that is incidental to and grows out of the employment. To quote from the opinion in Savage v. St. Aeden's Church, supra: 'The risk may be no different in degree or kind than those to which he may be exposed outside of his employment. The injury is compensable, not because of the extent or particular character of the hazard, but because it exists as one of the conditions of the employment.' (122 Conn. 343, 189 A. 601.)

The excerpt just shown is quoted in the Garcia case, supra, 209 S.W.2d at page 337.

In the dissenting opinion in the Andrews case, supra, 170 N.E., beginning at page 508, it is said at page 509 that it is no longer a test to determine whether the employee was subject to an ordinary risk. To quote, 'The test is the relation of the service to the injury, of the employment to the risk. * * * The risk need not be one peculiar to the injury employee nor one from which the general public is exempt.' The dissenting opinion in the Andrews case, which coincides with the majority view in the St. Aeden's Church case, sets out that the question always is: Did the workmen's employment require him to be in the place, whether on a floor or a walk or other structure, which caused the injury? The same conflict of views is seen in the majority and dissenting opinions in Stanfield v. Industrial Commission, 146 Ohio St. 583, 67 N.E.2d 446, where recovery of compensation was denied. Recovery was also denied in Cinmino's Case, 251 Mass. 158, 146 N.E. 245, 37 A.L.R. 769. But even in New York, Massachusetts and Ohio, recovery is allowed where the employee falls from a ladder, or into a hole, or against some object other than the floor, sidewalk or ground. It is our belief, and we so hold, that the attempted distinction between cases where the employee falls from a ladder, or into a hold, or against some object, and those where the employee falls to the ground or floor, is without a reasonable basis.

Both parties to the present appeal rely on expressions found in...