Kimbrough v. Indemnity Ins. Co.

• Court: Texas Court of Appeals
• Writing for the Court: Monteith
• Citation: Kimbrough v. Indemnity Ins. Co., 168 S.W.2d 708 (Tex. App. 1943)
• Decision Date: 28 January 1943
• Docket Number: No. 11492.,11492.
• Parties: KIMBROUGH et al. v. INDEMNITY INS. CO. OF NORTH AMERICA.

Page 708

168 S.W.2d 708

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

No. 11492.

Court of Civil Appeals of Texas. Galveston.

January 28, 1943.

Rehearing Denied February 17, 1943.

Appeal from District Court, Harris County; Kenneth McCalla, Judge.

Suit under the Workmen's Compensation Act by Indemnity Insurance Company of North America, insurer, to set aside an award of the Industrial Accident Board in favor of Knox H. Kimbrough, employee, wherein employee and others brought a cross-action. From a judgment for insurer, employee and others appeal.

Affirmed.

W. P. Hamblen and Jas. F. Bobbitt, both of Houston, for appellants.

James W. Mehaffy and Albert P. Jones, both of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellee.

MONTEITH, Chief Justice.

This is an appeal in a workmen's compensation suit brought by appellee, Indemnity Insurance Company of North America, to set aside an award of the Industrial Accident Board in favor of appellant, Knox H. Kimbrough, for compensation benefits alleged to be due for injuries received by him in the course of his employment with Magnolia Airco Gas Products Company, who carried compensation insurance with appellee.

Appellants filed answer and cross-action for the recovery of compensation benefits in the amount of $20 per week for 200 weeks, that being the sum alleged to be due for a specific injury consisting of the total and permanent loss of the use of his left leg.

At the conclusion of the introduction of testimony on behalf of the complainant, the trial court withdrew the case from the jury and entered judgment in favor of the appellee.

The sole question presented in the appeal is the sufficiency of the evidence to raise a jury question on the issue of whether appellant Kimbrough sustained an injury in the course of his employment by Magnolia Airco Gas Products Company.

Pursuant to Rule No. 378 of the Texas Rules of Civil Procedure, the parties filed their agreed statement of the case and of the facts proven which is incorporated in the transcript in lieu of a statement of facts. In this statement it was stipulated that at the date appellant was injured, on November 22, 1941, he had been employed for four or five years as an operator in the Acetylene Gas Plant of the Magnolia Airco Gas Products Company in the City of Houston. On the day before he was injured, appellant had worked until a late hour and returned to the plant at about 8 o'clock the following morning, intending to do some additional work. It was appellant's custom to drive his personally owned car in going to and from the plant. Several days before he sustained his injury appellant had heard an unusual noise in the car but had been unable to locate it. On this particular morning he had again heard the noise in the car. When he arrived and parked his car on the Company premises appellant discovered that he was the only employee present in his particular department. There was a company rule providing that at least two employees be present before the plant could be put in operation. While waiting for his foreman to report for work so that the plant could be opened, Kimbrough undertook to ascertain the cause of the noise in his car. At his request, the foreman of another department of the plant sent an employee of that department, Billy Reynosa, to assist appellant. Reynosa started the car while Kimbrough stood on its front bumper, with his head underneath the hood of the car for the purpose of locating the noise while the car was being driven. Reynosa accidentally drove the car into the rear of a company trailer which had been parked in front of the Kimbrough's car. Kimbrough's left leg was caught between the bumper of his car and the trailer and was severely injured.

There was no company rule or requirement with reference to the manner in which employees went to and from the plant. They could use any mode of transportation they wished. Kimbrough paid the expenses and upkeep of his car, and could go to and from work in his car or by any means available.

On previous occasions, when there had been a breakdown in the plant, Kimbrough had used his private car to go to town to secure replacement parts, but he had no intention of making such use of his car on the morning in question.

Kimbrough lived on Griggs Road, outside the city limits, in the northern portion of the City of Houston. The company's plant was in the northeastern part of Houston, some five or six miles distant. At all times the Houston Electric Company bus service was available to him in going to and from work.

In order to recover benefits under the Workmen's Compensation Act of the State of Texas, an employee must prove not only that his injury occurred while he was engaged in or about the furtherance of the affairs or...