Jones v. Casualty Reciprocal Exch.

• Decision Date: 06 April 1923
• Docket Number: (No. 2719.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 250 S.W. 1073
• Parties: JONES et al. v. CASUALTY RECIPROCAL EXCH.
• Court: Texas Court of Appeals

250 S.W. 1073

JONES et al. v. CASUALTY RECIPROCAL EXCH.

(No. 2719.)^*

Court of Civil Appeals of Texas. Texarkana.

April 6, 1923.

Rehearing Denied April 19, 1923.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Proceeding under Workmen's Compensation Act by Mildred Jones and another for the death of James Jones, husband and father, opposed by the Casualty Reciprocal Exchange, insurer of the Denison Crystal Ice Company, employer. The Industrial Accident Board awarded compensation, and the insurer brought suit to set aside the award. From a judgment setting aside the award, claimants appeal. Reversed, and judgment entered on the award.

During the year 1921, the Denison Crystal Ice Company, a corporation, was a subscriber to the Employers' Liability Act, and at the time had more than three employees and was carrying a policy of insurance with the Casualty Reciprocal Exchange of Kansas City, Mo., of the kind and character required by the Employers' Liability Act of Texas. James Jones was in the employ of the ice company, and was one of the employees covered in the insurance policy. On January 20, 1921, after eating his dinner, and during the noon hour, James Jones, with another employee of the ice company, was returning in an auto truck of the ice company to the ice company premises, and on reaching Crokett street, several blocks from the ice company's plant, the auto truck in attempting to pass another auto was turned over, and James Jones injured to the extent that in a few hours he died. The ice company permitted or authorized the use of the auto truck as a means of transportation of the deceased and other employees to and from the place of work. James Jones left surviving him his wife, Mildred Jones, and a daughter, Bernice Jones, 11 years old. After the death of James Jones, the proper notice was given to the ice company and the insurance company, and the matter was legally and regularly presented to the Industrial Accident Board, which board on April 15, 1921, made its findings to the effect that James Jones was in the employ of the ice company and as such employee was covered by the insurance policy, and made an award of $10.38 per week to the wife and daughter for 360 weeks, beginning January 20, 1921. Exception was filed to the finding and award of the Industrial Accident Board by the insurance company, and suit was filed by them in the district court of Grayson county April 16, 1921, for the purpose of setting aside the finding and award of the Industrial Accident Board. In a trial before the district court a judgment was entered setting aside the award of the Industrial Accident Board, and judgment entered in favor of the appellee.

The court made the following findings of fact:

1. "The busy season with the ice company is from April to the latter part of September, and the balance of the year the ice company has its employees doing various kinds of work, designated as `odd jobs,' which is a part of the ice business. The plant of the ice company is located in Denison, about two miles north, on a farm. The deceased, James Jones, lived about a half mile south of the ice company's plant. In the month of January, 1921, the ice company was using a number of its employees constructing or repairing a dam on the farm. The employees would meet at the plant, punch the time clock, get in a truck belonging to the ice company, operated by Mr. Tobin, general manager of the ice company, and go to the tank, where they would work until about 12 o'clock, then return to the ice plant in the truck, punch the time clock, and they were allowed one hour for lunch, would then return to the ice plant, punch the time clock, go back to the tank and complete the day's work, return to the ice plant in the truck, and punch the time clock for the closing of the day's work. Some of the employees lived close to the plant, and in returning from the dam to the plant they would leave the truck as it neared the place of their residence before reaching the ice plant. On January 20, 1921, James Jones (the deceased) started to work at 7:01 a. m. and checked out at 12:01, as shown by the card in the time clock introduced in evidence. After checking in at the ice plant on this date, the employees, as was the custom, got in the Ford truck and went to the dam. They returned to the plant, and James Jones checked out, as stated, at 12:01. When they drove up to the ice plant, Mr. Tobin was driving the truck. He got out, and Will Browning, a negro employee, took the wheel. Mr. Tobin left, James Jones went in the plant and punched the time clock, consuming some four or five minutes. He then returned and got into the truck with Will Browning. The engine was left running all the time. Browning and Jones then went south, as was their custom; Jones getting out at his residence, and Browning driving the truck on to his home. When Jones had finished his lunch, he walked down to Browning's house, and they got in the truck and started back to the ice plant. While going along Crockett street, a public highway some blocks from the company's plant, they attempted to pass another car. The truck was turned over and James Jones was injured to the extent that in a few hours he died."

2. "The Ford truck that caused the death of James Jones was the property of the ice company, and at the time of the accident was being used by permission of said company."

3. "When James Jones punched the time clock at 12:01 on January 20, 1921, he was allowed an hour to do as he pleased. He could stay at the plant, go to town, or to his home. The hour was ample time to have enabled him, if he had desired, to walk home, get his lunch, and return to the plant in time to punch the clock at 1 o'clock. When he punched the clock and got in the truck to go to his lunch, he was using the truck of the ice company for his own accommodation; he was not going on any work for the ice company, nor was he directed to use it by any officer or agent of the ice company. He was injured upon a public highway and while returning from lunch, intending to again punch the time clock and begin the afternoon's work."

"The average weekly wage of James Jones was $17.30; and if the beneficiaries herein are entitled to anything, it would be $10.38 per week for 360 weeks, payable to Mildred Jones and Bernice Jones."

In the light of the evidence, James Jones and other employees were working on the basis of eight hours a day, and were paid for "overtime" work.

Upon his findings as stated above the court made the following conclusions of law:

"I conclude that the said James Jones at the time of receiving the injuries from which he died was injured at a time when he had exclusive control of his actions, and that he did not receive the injuries in the course of his employment by the ice company, and that the terms of the policy did not extend to him. Hence judgment must be rendered for the insurance company, and it is so ordered."

Geo. L. Hamilton and Webb & Webb, all of Sherman, for appellants.

Wolfe, Freeman & Wolfe, of Sherman, for appellee.

LEVY, J. (after stating the facts as above).

To come within the term "injury received in the course of employment," as defined by the Workmen's Compensation Law, it must appear that the "injury" (1) was one "having to do with and originating in the work" of the employer, and further (2) that it was "received" by the employee "while engaged in or...