Gulf Ins. Co. v. Johnson

• Decision Date: 02 April 1981
• Docket Number: No. 17905,17905
• Citation: 616 S.W.2d 320
• Parties: GULF INSURANCE COMPANY, Appellant, v. Jesse Mae JOHNSON, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 320

616 S.W.2d 320

GULF INSURANCE COMPANY, Appellant, v. Jesse Mae JOHNSON, Appellee.

No. 17905.

Court of Civil Appeals of Texas, Houston (1st Dist.).

April 2, 1981.

Rehearing Denied April 16, 1981.

Byron Lee, Butler, Binion, Rice, Cook & Kanpp, Houston, for appellant.

Ronald Tucker, Houston, for appellee.

PEDEN, Justice.

Gulf Insurance Company appeals from a judgment rendered on jury findings awarding Mrs. Jesse Mae Johnson 360 weeks of worker's compensation benefits for the death of her son, Richard Johnson, plus $1,250 for his burial expenses. Twenty-year-old Richard Johnson was employed as a dishwasher and kitchen helper at Echo Hill Ranch, a recreational youth camp, during the fourteen days before the afternoon of June 16, 1977, when ranch employees discovered his body floating in the shallow water of a river on the premises of the camp. His death certificate indicated that accidental drowning was the cause of his death.

The appellant complains that the evidence was legally or factually insufficient to support the submission of issues inquiring as to compensable injury in the course and scope of employment, producing cause, and wage rate. The carrier also says that the evidence was insufficient to show that there was a policy of insurance in effect on the date in question, that the trial court erred in allowing certain exhibits and testimony to be admitted in evidence and in permitting a witness to be treated as an adverse party. We affirm.

The carrier's first three points of error assert that there was no evidence or insufficient evidence of a compensable injury in the course and scope of employment which injury was a producing cause of the death of Richard Johnson. The appellant also says there was no evidence to support the trial court's instructing the jury concerning injuries received while an employee is engaged in a recreational or social activity.

Mrs. Johnson, mother of the deceased, testified that she was present when Richard was hired to be a dishwasher, kitchen helper, and handyman at a salary of $80-$90 per week, including sleeping quarters, meals, horseback riding, fishing, canoeing, and swimming; he could have gotten a dishwashing job at home, but by taking the ranch job he could do all of those things. Louise Butler, the cook at Echo Hill Ranch who hired Richard, testified that she told him he would be able to use all of the ranch facilities, including swimming and canoeing, in addition to being paid his salary. Mrs. Minnie Friedman, co-owner and co-director of Echo Hill, testified that controlling the kitchen crew is part of her responsibility, that she did not interview Richard but did talk with him very plainly during orientation about the fact that the waterfront was absolutely restricted and that the deep swimming area was off limits at all times. She didn't walk him around the ranch to show him which water was deep, however, and doesn't know whether anyone else did. Dr. S. Thomas Friedman, co-owner and co-director of Echo Hill, testified by deposition that no one is on duty at the deep water spots on the ranch's river unless the children are there, that kayaks are pulled up to the shore on the shallow side of the river where a person can wade in, and that of course a kayak can go from shallow to deep water. Minnie Friedman testified that there were no signs to indicate the presence of deep water or that one should not swim without a lifeguard.

There was evidence that Richard was required to and did stay on the ranch 24 hours a day and that he was on call all the time. He would work in the kitchen during the three meal periods, and between meals he could go anywhere he pleased within the area, as long as he was back in time for the next meal. The evidence is conflicting as to whether his death, which occurred on a Thursday, was on his day off. Both Dr. and Mrs. Friedman testified that the kitchen crew was off duty every Thursday and Sunday afternoon and evening. Louise Butler first said that they were off on Sundays and Thursdays, then later indicated that Wednesdays and Sundays were the usual days off. The jury was entitled to conclude that the day of his death was not an off day for him. In addition, the jurors had a right to believe that he was on call when he was not in the kitchen and that he was expected to utilize the recreational facilities as part of his salary. They were not required to accept the Friedmans' testimony that Richard was told not to use the swimming facilities. It was not established as a matter of law that Richard was violating any rule or doing anything other than what was expected of him while he was on call by being in the swimming area. Mrs. Johnson stated that she was never told by anyone that Richard was disobeying any instructions, violating any rules, or swimming in the wrong area at the time of his death.

Gulf argues that Richard Johnson's was an unexplained death and that no evidence in the record provides a basis for determining what happened to him. That a deceased employee sustained a fatal accidental injury may be established by circumstantial evidence alone; moreover, not every other reasonable hypothesis need be excluded. Traveler's Insurance Co. v. McKain, 186 F.2d 273 (5th Cir., 1951). See Couch v. Hale, 404 S.W.2d 920 (Tex.Civ.App.1966, no writ). The jury ordinarily must determine the weight given to such circumstances. Id. The death certificate is prima facie evidence that the immediate cause of death was accidental drowning, and no evidence contradicting this or suggesting another cause was introduced. Mrs. Butler testified that when she last saw Richard he was wading in shallow water with his trousers rolled up, and she told him he wasn't supposed to be there alone. His body was found in the river, and there was evidence that he was wearing a bathing suit. There is sufficient circumstantial evidence to show that Richard's death was the result of accidental drowning and thus to support findings that he received an accidental injury on or about June 16 and that it was producing cause of his death.

Citing Scott v. Miller's Mutual Fire Insurance Co. of Texas, 524 S.W.2d 285, 289 (Tex.1975), the appellant contends that the court there stated that to support a jury finding in cases of unexplained injury or death there must be evidence that: 1) the employee was injured on his employer's premises during working hours on a working day, and 2) the employee was injured at a place where he might properly have been in the performance of his duties. We disagree. Rather, the Supreme Court recited those facts and said they constituted facts in the Scott case. The Court stated this rule:

To show that his injuries were sustained in the course of employment, it was incumbent upon petitioner to establish that they had to do with and originated in the work of his employer and were received by him while engaged in or about the furtherance of the employer's affairs or business.

In the case of Associated Employers Lloyds v. Wiggins, 208 S.W.2d 705, 706-07 (Tex.Civ.App.1948, writ ref'd. n.r.e.), it was held that there was nothing to show that the deceased employee was on a mission of his own at the time he was struck by a bottle while traveling a route customarily traveled in the performance of his duties, although he often went across the street to a drug store or to a cafe. The court quoted from 120 A.L.R. 683, 684, stating:

It is generally held that when it is shown that an employee was found dead at a place where his duties required him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master's business, there is a presumption that the accident arose out of and in the course of the employment within the meaning of the compensation acts.

The court further stated:

But even if he had temporarily left his work to go to a cafe or drug store or to run some errand not connected with his employment, we are not prepared to hold as a matter of law that his fatal injuries were not received in the course of his employment. He was struck by the bottle at a place where he often was and would be in carrying out the duties of his employment.

See also Elledge v. Great American Indemnity Co., 312 S.W.2d 722 (Tex.Civ.App.1958), writ ref'd. n.r.e. per curiam, 159 Tex. 288, 320 S.W.2d 328 (1959).

In our case it is clear that Richard was on call 24 hours a day on his employers' premises, he slept there, and he was available if needed. His right to use the recreational facilities was a part of his employment agreement. Man does not live by bread alone, and Richard would be expected to be a better employee if he could avoid boredom by wading or swimming or by finding other recreation while staying available for call on the premises. The jury was entitled to conclude that Richard accidently drowned while doing what might reasonably have been expected of him under the circumstances. It was noted in a well-reasoned opinion by former Chief Justice James A. Ellis for the Amarillo Court of Civil Appeals, Insurance Company of North America v. Estep, 501 S.W.2d 352, 355 (Tex.Civ.App.1973, writ ref. n.r.e.):

It has been held that if the terms of the contract of employment require the workman to sleep on the premises of the employer, he is performing services having to do with and originating in the business of the employer while he is on the premises, even when off active duty, if he is doing what might be reasonably expected of him under the circumstances. Texas Employers' Ins. Ass'n v. Lawrence, 14 S.W.2d 949 (Tex.Civ.App.-Eastland 1929, writ ref'd.); Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex.Civ.App.-Eastland 1931, writ ref'd.).

In Estep the claimant was injured when shoved by another employee while Estep was preparing his own supper on the premises of the cotton gin where he worked and lived. He was on call 24 hours a day. The court...