Indemnity Ins. Co. of North America v. Garsee, 2277.

• Decision Date: 02 December 1932
• Docket Number: No. 2277.,2277.
• Citation: 54 S.W.2d 817
• Parties: INDEMNITY INS. CO. OF NORTH AMERICA v. GARSEE et al.
• Court: Texas Court of Appeals

54 S.W.2d 817

INDEMNITY INS. CO. OF NORTH AMERICA v. GARSEE et al.

No. 2277.

Court of Civil Appeals of Texas. Beaumont.

December 2, 1932.

Rehearing Denied December 7, 1932.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by the Indemnity Insurance Company of North America against C. G. Garsee, employee of the Gulf Refining Company, to set aside an adverse award of the Industrial Accident Board, in which suit the employee filed a cross-action. From an adverse judgment, the Indemnity Insurance Company of North America appeals.

Judgment reversed, and cause remanded for a new trial.

See, also (Tex. Civ. App.) 47 S.W.(2d) 654.

Barnes & Barnes, of Beaumont, for appellant.

Fred A. White and R. H. Jernigan, both of Port Arthur, for appellees.

WALKER, C. J.

This suit was instituted in the district court of Jefferson county by appellant, Indemnity Insurance Company of North America, against appellee C. G. Garsee and others, as an appeal from an adverse award of the Industrial Accident Board. Upon trial to a jury it was found that Garsee suffered total incapacity from the date of the injury sued for in his cross-action for 174 days, and a permanent partial incapacity of 85 per cent. of the use of his arm. Judgment was entered in his favor upon these findings, from which this appeal was prosecuted. The nature of the case will be fully stated in the discussion of the propositions of error.

By its first four propositions appellant asserts: First, that appellee failed to plead a cause of action; and, second, that his proof failed to establish a compensable injury.

Appellee pleaded the nature of his injury as follows: "On or about the 3rd day of March, 1930, C. G. Garsee was in the employment of the Gulf Refining Company, and had been employed by the said Gulf Refining Company for a period of several years next prior to said date, and that on said date, while in the course of his employment with the Gulf Refining Company and while covered by Workmen's Compensation Insurance, received an injury while on duty, in the nature of an insect bite or other poisonous insect or animal on his arm at or near the elbow. That said injury was received in a bath house at said Gulf Refining Company, at or near Port Arthur, Jefferson County, while he was removing some objects from a barrel or other container at or near the bath house, and while engaged in the duty for which he was employed, and while about the business of his employer, the Gulf Refining Company. The nature of said injury will be more specifically set out hereinafter."

In support of the allegations of his petition he testified as follows, reducing his question and answer testimony to narrative form: "I was working out at the Gulf Refinery, in the bathhouse on Sixteenth Street * * * and some kind of an insect stung me on the arm, on the 18th day of March, 1930. Well sir, of course I was working at the bathhouse, but I was working in a drum to put some worn clothes that had been thrown away around the hose to blow a sewer out in the bathhouse." He further testified that he was taking some old clothes out of an old barrel to wrap around a pump to blow a sewer out, and that it was a part of his duty, and that he couldn't get along without doing it; that he wasn't required to do it, but found out pretty soon he had to do it or the sewers would stop up and he couldn't wash the bathhouse locker rooms; that washing the bathhouse locker rooms was part of his duties; and that if the sewers stopped up he couldn't wash the bathhouse because the water would stand in there and had no way of getting out. On his cross-examination appellee further testified: "It was the same bathhouse where I was working when I got stung or bitten. Before I got my arm broken I was doing in the bathhouse that day what I do every day, clean up the bathhouse. It was the same kind of work I was doing when I got stung. * * * I had a broken arm. Yes, sir, that broken arm was received in the usual course of my employment. They gave me compensation a while paying me for that broken arm. I was working in the bathhouse when I got my arm broken. I broke that arm the last day of last year; the last day of last 1930, at nine o'clock in the morning. I was working when I got my arm broke. When I got my arm broke I was shutting the water off out of the shower bath upstairs in what is called the negro quarters. That was the same bath house I was working in when I was hurt before; it was the same bath house I was working in when I got stung or bitten. The day before I got my arm broke I was doing what I do every day, cleaning up the bath house. That was the same kind of work I was doing when I got stung. After I was bitten by the insect bite the job I returned to was straight days in the bath house, doing a part of the work I had done when I was shifting; cleaning up the bath house, cleaning around. In cleaning up the bathhouse about the first thing we did was shut the water off in the shower bath. Next thing we do is go around and get up all the clothes off the floor and all papers and rags, and then get back to the shower house and sweep and rinse them out."

Joe Ayo, a witness for appellant, testified that he was working in the bathhouse in March, 1930; that he knew C. G. Garsee and that he saw him on the morning of the 18th of March, and that Garsee told him that morning that during the night he had been bitten on the arm while cleaning the sewer pipe. "He was cleaning up the sewer pipe, the sewer drainage. He told me he was cleaning the sewer pipe and something bit him on the arm." On cross-examination Mr. Ayo testified that the sewer line in question in this case was the line that "drains off the bath water from the bath house and that the line frequently gets stopped up, soap and stuff like that, and in order to clean it out you take a hose and put the end of that hose in the opening in the sewer and pack old clothes around it and create a pressure to force the obstruction out of the sewer line"; and that Garsee told him he was cleaning up the sewerage, it was stopped up, and something must have bitten him while he was cleaning up the sewer.

Appellant's argument is to the effect that the insect sting or bite did not have its origin in any causative danger prevailing in the conditions of appellee's employment and that he was not exposed to any hazard to which he would not have been equally exposed apart from his employment; that the "accident" forming the basis of appellee's cause of action resulted from a danger to which mankind in general was equally exposed. It is also insisted by the fifth proposition that there was no proof that the work in which appellee was engaged at the time of his injury constituted work "in the usual course of trade, business, profession or occupation of his employer."

We will dispose of the last contention first. It is the law, as appellant insists, that it is not alone sufficient to show that the claimant was injured while engaged in or about the furtherance of his employer's business, but "he must also show that his injury was of such kind and character as had to do with and originated in the employer's work, trade, business, or profession." Aetna Life Ins. Co. v. Burnett (Tex. Com. App.) 283 S. W. 783, 784. The proof in this case is that appellee had been in the employment of the Gulf Refining Company for about fourteen years and for the two years immediately preceding his injury, had been doing bathhouse work, the very work he was engaged in at the time he received his injury. The conclusion is irresistible that the operation of the bathhouse was a part of the business of the Gulf Refining Company.

Appellant urgently insists that the insect sting or bite was "an act of God," and that the risk of being stung by the insect did not originate in the employment, and that while engaged in his employment he was not subject to a greater hazard or risk of the insect bite than if he had not been so employed. We think the facts refute this argument. In order to clean out the bathhouse it was necessary to keep the sewer open. To accomplish this purpose it was necessary that appellee perform the work in the manner testified to by him and Joe Ayo. The material for this work was stored in a barrel. No one except a bathhouse employee had the right of access to this barrel. The record conclusively establishes the fact that the insect bite resulted from an effort on the part of appellee to discharge in an orderly way the duties of his employment. We think the risk or hazard in this case falls within the rule announced by the Supreme Court in Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S. W. 72, 73, 28 A. L. R. 1402, where it was said: "An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business" (citing Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. [916], 918).

As the evidence did not raise the issue of "act of God," the trial court did not err in refusing to define that term to the jury.

It was improper for the court to ask the jury: "Was C. G. Garsee employed in the bathhouse of the Gulf Refining Company, if he were so employed, for substantially the whole of the year * * * prior to the 18th of March, 1930?" This question submitted to the jury an issue of law as distinguished...