Hardware Mut. Cas. Co. v. Brown

• Decision Date: 07 April 1965
• Docket Number: No. 14375,14375
• Citation: 390 S.W.2d 53
• Parties: HARDWARE MUTUAL CASUALTY COMPANY, Appellant, v. Opal BROWN et al., Appellees.
• Court: Texas Court of Appeals

Page 53

390 S.W.2d 53

HARDWARE MUTUAL CASUALTY COMPANY, Appellant, v. Opal BROWN et al., Appellees.

No. 14375.

Court of Civil Appeals of Texas, San Antonio.

April 7, 1965.

Rehearing Denied May 12, 1965.

Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for appellant.

Carl Raymond Crites, Thomas H. Peterson, San Antonio, for appellees.

BARROW, Justice.

This is a workmen's compensation death case wherein the primary question is whether or not Robert W. Nichols was a Texas employee, under Art. 8306, § 19, Vernon's Ann.Civ.Stats., at the time he received fatal injuries in Camden, Arkansas. The jury found that he had the status of a Texas employee of Buckner Brick Company, Inc., hereinafter referred to as 'Buckner,' at the time of his death, and judgment was rendered on this verdict in favor of his surviving parents.

Appellant, Hardware Mutual Casualty Company, which carried workmen's compensation for Buckner under the Texas Compensation Act, asserts that the trial court erred in overruling its motion for instructed verdict and judgment non obstante veredicto. These are 'no evidence' points, and require a review of the evidence in its most favorable light in support of the jury's finding, considering only the evidence and inferences which support the finding, and rejecting the evidence and inferences which are contrary to the finding. Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; Calvert, 'No Evidence' and 'Insufficient Evidence' Points of Error, 38 Tex.Law Rev. 361.

Robert W. Nichols was hired in Dallas, Texas, in September, 1962, but performed no work for Buckner in Texas prior to his death in Camden, Arkansas, on November 11, 1962. Both parties concede that this case is controlled by the applicable principles of law stated by the Supreme Court in Southern Underwriters v. Gallagher, 135 Tex. 41, 136 S.W.2d 590 (1940). It was there said:

'Under the plain provisions of Section 19 of Article 8306, supra, as interpreted and construed in the two cases above mentioned (Texas Employers' Ins. Ass'n. v. Volek, Tex.Com.App., 69 S.W.2d 33; Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955), before an employee injured outside the territorial limits of this state can recover for such injury under our compensation statutes, he must prove that, at the time of such injury, he occupied the status of a Texas employee incidentally or temporarily sent out of the state to perform labor or services. The phrase, 'who has been hired in this State,' has no reference to the place where the contract of hiring took place. The test is: What was the status of the employee at the time of injury with regard to being a Texas employee? If, at such time, he occupied the status of a Texas employee, he is entitled to protection under our Compensation Statutes, even though he was working out of the state. On the other hand, if the employee is hired or contracted within this state to go out of this state to perform labor or services, he cannot claim protection under our Compensation Law merely because the contract was made or entered into in this state. Also, if a person is hired to work in this state,--that is, if, under the contract of hiring, such person becomes a Texas employee in the sense that it is contemplated that his services are to be rendered in this state, such employee is protected by our Compensation Law, even though he is first sent incidentally or temporarily out of the state to perform labor or services, and the mere fact that such employee performs his first services out of this state will not defeat his right to protection under our compensation statutes. In any event, before the statute under consideration can be applied in favor of an employee injured out of this state, it must be shown that he occupied the status of a Texas employee before leaving the state. Also, it must be further shown that while occupying such status he was...