Decision Date25 September 1959
Docket NumberNo. 17623.,17623.
Citation270 F.2d 505
PartiesJames A. HEACKER and wife Marie Heacker, Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Edward J. Dees, Dallas, Tex., for appellants.

Donald K. King, Whitney R. Harris, Dallas, Tex., Grover Sellers, Sulphur Springs, Ark., for appellees.

Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.

CAMERON, Circuit Judge.

Appellant James A. Heacker, individually and in behalf of his wife, Marie Heacker, instituted this action for damages in the district court alleging negligence of the agents, servants and employees of the appellee Southwestern Bell Telephone Company resulting in injuries to Marie Heacker when she fell on the ice-covered sidewalk along the front of the appellee's premises in Greenville, Texas. This is an appeal from a summary judgment granted by the court below in favor of defendant-appellee. The determinant questions presented are whether appellant Marie Heacker, at the time of the accident, was within the scope of her employment, and whether the filing of a claim for Workmen's Compensation, receipt of medical expenses and other compensation thereunder, constitutes an election of remedies or estops the appellant from maintaining a common law action.

We think the facts involved in these questions are uncontroverted and are revealed clearly by the pleadings, the deposition of Marie Heacker (attached to the motion for summary judgment), and statements and argument of counsel before the district court which appear in the record.

Marie Heacker was a career employee of Southwestern Bell Telephone Company employed in 1935, assigned to the telephone exchange in Dennison, Texas in 1943. In the latter part of January, 1956, having attained the position of service assistant, she was temporarily assigned on an expense account covering meals, lodging and travel, to the exchange in Greenville, Texas, there to instruct the local operators in problems which would arise in connection with the pending conversion to the dial system.

After arrival in Greenville, Mrs. Heacker found accommodations in a local hotel situated several blocks from the telephone exchange. The injury involved in this case was suffered a few minutes before 8:00 a. m. on Feb. 3rd. Mrs. Heacker, on that morning, left the hotel at approximately 7:40 a. m. with another employee and began walking to the telephone office, as she had done on two or three previous mornings. It was a cold and icy day and the sidewalks between the hotel and the exchange were, for the most part, difficult of travel due to the accumulation of ice and snow thereon. Because of the treacherous condition of the sidewalk, the two employees of Southwestern chose to walk in the streets a substantial portion of the journey between the hotel and the exchange building.

Upon arrival at a point directly in front of the Southwestern Building, the two ladies crossed the street and, after Mrs. Heacker had stepped from the street onto the sidewalk running across the front of the exchange building, she attempted to take a second step on the sidewalk, slipped and fell on the icy surface, fracturing the radius and ulna bones of her right wrist.

Within a short period of time after her injury, she was taken to a local clinic and placed under the care of an orthopedist. Three days later she was visited by two representatives of Southwestern, at which time she signed a completed printed form entitled "Notice of Injury and Claim for Compensation, Texas Workmen's Compensation," in which she gave notice of her injury, filed a claim for compensation due under the Workmen's Compensation Law of Texas, and requested that the Industrial Accident Board take action on her claim as soon as possible. On the basis of this claim, the Texas Compensation Insurance Company paid to Mrs. Heacker $1,810.71, which sum represents compensation due from the date of the injury until the time of her return to work on June 23, 1957, computed at the rate of $25 per week for a total of seventy-two weeks and three days. Medical expenses based upon this claim in the amount of $1,467.64 were also paid by the Texas Compensation Insurance Company. Later surgery was performed January 14, 1957. On June 24, 1957, Mrs. Heacker resumed her duties with the appellee. During her absence from work she had received full pay for the first year, and half pay thereafter.

This action was brought by her husband on Feb. 3, 1958. The complaint alleges that Southwestern and those acting in its behalf were guilty of negligence with respect to Marie Heacker relating generally to the condition of the sidewalk in front of the premises of said company at Greenville, Texas on the day of the accident and that Marie Heacker, because of said negligence and the injury resulting therefrom, was permanently incapacitated from performing her usual duties of employment and suffered damages in the amount of $50,500. Southwestern filed its answer denying the charge of negligence and disclaiming any liability to plaintiff by reason of the accident and injuries.

Southwestern thereafter filed its motion for a summary judgment upon the grounds (1) that the exclusive remedy of the employee in this controversy for the accidental injury was under the Workmen's Compensation Law of Texas against the insurance carrier of Southwestern Bell Telephone Company, and (2) that by filing her claim for compensation with the Industrial Accident Board and accepting compensation thereunder, Marie Heacker elected to pursue her remedy under the Workmen's Compensation Law of Texas, and is thereby precluded from maintaining this common law action against her employer.

Generally, the question of whether an employee was acting within the scope of his employment is an issue of fact to be resolved by the jury. Texas Indemnity Insurance Co. v. Hubbard, Tex.Civ.App.1940, 138 S.W.2d 626; New Amsterdam Casualty Co. v. Hosch, Tex. Civ.App.1935, 78 S.W.2d 633. Where, however, as here, the relevant evidence is so indisputed and so conclusive that reasonable minds cannot reach different conclusions, the question becomes one of law. See Croswell v. Commercial Standard Ins. Co., Tex.Civ.App.1933, 56 S.W.2d 918; Maryland Casualty Co. v. Williams, Tex. Civ.App.1932, 47 S.W.2d 858; Texas Employers' Insurance Association v. Sewell, Tex.Civ.App.1930, 32 S.W.2d 262.

Out of the phenomenal industrial growth of this century arose the conviction among the public that the common law rules of liability were unsuitable to afford adequate relief to the countless number of persons sustaining injury in their employment. The belief became widespread that the burden of employment-connected deaths and injuries should rest with employers.

Workmen's Compensation statutes have been quite generally enacted whereunder compensation is paid without regard to common law rules of liability to those injured in the course of their employment. 58 American Jurisprudence, Workmen's Compensation, § 2, p. 575. Either by statute or by court decision, it is generally established that such statutes should be liberally construed as to coverage. This is true in Texas whose law governs. Hooper v. Great American Indemnity Co., 5 Cir., 1939, 102 F.2d 739; Federal Surety Co. v. Ragle, Tex.Civ. App.1930, 25 S.W.2d 898; Vernon's Annotated Texas Statutes, Article 8306 et seq. While there are many cases from Texas courts denying coverage to employees while going to and from the place of their employment,1 there are many holding the other way and this case, in our opinion, falls within the latter group. It is clear that under the Texas Statute, injuries are compensable which result from risks inherent in, or incident to, the conduct of the employer's business without regard to the time or place the accident occurred.2

In National Surety Corp. v. Bellah, 5 Cir., 1957, 245 F.2d 936, we held that an employee injured in a restaurant on the company premises...

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3 cases
  • Kelty v. Travelers Ins. Co.
    • United States
    • Texas Court of Appeals
    • May 21, 1965
    ...factual situations are difficult to find, especially having to do with snow and ice in Texas, the case of Heacker v. Southwestern Bell Telephone Co., 270 F.2d 505 (Fifth Circuit, 1959) is closely in point. There the employee of the telephone company, on a cold and icy day, was walking on th......
  • Texas Compensation Ins. Co. v. Matthews
    • United States
    • Texas Court of Appeals
    • December 6, 1973
    ...falls on public sidewalks on the way to or from work have been held covered by workmen's compensation laws. Heacker v. Southwestern Bell Telephone Co., 270 F.2d 505 (5th Cir. 1959); Barnett v. Britling Cafeteria Co., 225 Ala . 462, 143 So. 813 (1932); Hammond v. Great Atlantic & Pacific Tea......
  • Lotspeich v. Chance Vought Aircraft
    • United States
    • Texas Court of Appeals
    • May 10, 1963
    ...later when her X-ray plates were read and interpreted. Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63; Heacker v. Southwestern Bell Telephone Co., 5 Cir., 270 F.2d 505. Accordingly, we hold that appellant's right of action, if any ever existed, was extinguished by the Workmen's Com......

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