Kirby Lumber Co. v. Scurlock

• Court: Texas Supreme Court
• Writing for the Court: Greenwood
• Citation: Kirby Lumber Co. v. Scurlock, 246 S.W. 76 (Tex. 1922)
• Decision Date: 29 November 1922
• Docket Number: (No. 3646.)
• Parties: KIRBY LUMBER CO. v. SCURLOCK et al.<SMALL><SUP>*</SUP></SMALL>

246 S.W. 76

KIRBY LUMBER CO. v. SCURLOCK et al.^*

(No. 3646.)

Supreme Court of Texas.

November 29, 1922.

Appeal from Court of Civil Appeals of Ninth Supreme Judicial District.

Action by Mrs. Maggie Scurlock and others against the Kirby Lumber Company. From a judgment of the Court of Civil Appeals (229 S. W. 975), affirming a judgment of the district court, defendant appeals. Reversed and rendered.

Andrews, Streetman; Logue & Mobley, of Houston, for appellant.

Chas. L. Black, of Austin, Collins, Morris & Barnes, of Beaumont, and V. A. Collins, of Dallas, for appellees.

GREENWOOD, J.

Defendants in error were the widow and the minor children of J. W. Scurlock, suing plaintiff in error for damages on account of J. W. Scurlock's death.

The petition of defendants in error contained the following allegations:

"(2) That the said J. W. Scurlock, deceased, was working for the defendant, Kirby Lumber Company, at its sawmill at the town of Call in Newton county, Tex., on the morning of March 5, 1919, just previous to the time of his death, and had been so employed for five or six years prior to that time, during which time he lived with his family, plaintiffs herein, out something like two miles from said mill, and near to the log road or tramroad owned by said defendant, over which it hauled its logs from the woods to its said mill to supply its said mill.

"(3) That for five years the said J. W. Scurlock had been accustomed to use defendant's said log road or tramroad for the purpose of running his velocipede, which he used to make his regular trips back and forth from his home to said mill, each and every day on which he worked.

"(4) That such use of said tram by the said J. W. Scurlock was with the knowledge and consent and at the invitation of the said defendant, and said defendant from the first of such use knew that said J. W. Scurlock was using said tramroad for such purpose, and defendant, not only did not object to such use of said tramroad by said J. W. Scurlock, but consented to it, and invited him to use said road in such manner, and all of said time he was a valued employee of said defendant at its mill.

"(5) That on March 5, 1919, the mill did not run, and said Scurlock finished all the work he had to do on that day, at about 12 o'clock noon, and after finishing his work, as was his custom, and had been for about five years, he mounted his velocipede on the said tramroad and started for his home."

It was also alleged by defendants in error that plaintiff in error's agents and servants operating a log train over said tramroad, negligently ran the train over J. W. Scurlock, on March 5, 1919, cutting his body into fragments and causing his death. The petition contained proper averments of relationship between defendants in error and deceased and of damage from his death.

Plaintiff in error, among other defenses, pleaded that it was a subscriber within the terms of the Workmen's Compensation Law of Texas (Vernon's Ann. Civ. St. Supp. 1918 arts. 5246-1 to 5246-91), having taken out a policy of insurance in compliance with said law; that the injury which caused the death of J. W. Scurlock was sustained by him in the course of his employment by plaintiff in error, and that defendants in error were denied any cause of action against plaintiff in error, but were entitled to compensation from plaintiff in error's insurer, which compensation had been tendered and rejected.

One of the witnesses for defendants in error testified:

"It didn't make any difference about what kind of weather it was; with a velocipede, a man could certainly get to work on time. It facilitated his work for him to be permitted to come in to his work on the velocipede, and it facilitated his returning from his work home."

The Court of Civil Appeals found:

"No one used this track, as did Scurlock, except employees of the company. On the day of the accident, Scurlock rode from his home to the mill on his velocipede; but, as the mill was idle that day, he did no work for the company. He worked a little on his sizer, and spent the balance of the morning in the shop, working on his velocipede. About noon he left the mill for home, riding his velocipede on the tramroad. The log train left the mill 20 or 30 minutes later, and ran over and killed Scurlock about a mile and a half from the mill. The defendant was a subscriber under the Workmen's Compensation Act. * * * Shortly after the death of her husband, Mrs. Scurlock filed a claim under the Workmen's Compensation Law with the Industrial Accident Board. The insurer did not contest the claim, but Mrs. Scurlock dismissed it before an order was entered by the board in her favor. After the claim was dismissed, the insurer tendered checks to Mrs. Scurlock in the proper amounts under the Workmen's Compensation Law."

There was testimony that Scurlock's foreman did not report any time as put in by Scurlock at work for plaintiff in error on the day of his injury and death.

Judgment was rendered that defendants in error recover of plaintiff in error damages in the sum of $15,000, on a special verdict, finding that Scurlock's death was the proximate result of negligence on the part of the agents of plaintiff in error operating the train over the tramroad, and finding that Scurlock was not guilty of contributory negligence. The judgment was affirmed by the Beaumont Court of Civil Appeals. 229 S. W. 975.

The case presents the single question whether, under the pleadings and the undisputed evidence, Scurlock received the injuries causing his death in the course of his employment, within the meaning of the Texas Workmen's Compensation Law. If so, by the express terms of the law, defendants in error were not entitled to maintain this suit, but must look for compensation to the insurer.

According to the pleadings, Scurlock was injured while returning to his home from his daily labor at the sawmill where he was employed by plaintiff in error, on the tramroad over which logs were supplied to the mill, while using the tramroad by invitation of plaintiff in error as the means of access to, and of egress from, the sawmill; the injury resulting from a risk necessarily attendant upon the operation of the tramroad.

According to the undisputed evidence, Scurlock was injured on his return to his home from the sawmill, to which he had reported in accordance with his contract of employment, to perform his daily labor as the servant of plaintiff in error, on the tramroad over which logs were supplied to the mill, while using the tramroad, as the means of access to and of egress from the sawmill, with the acquiescence of plaintiff in error, in order to facilitate the work done by Scurlock for plaintiff in error; the injury resulting from a risk necessarily incident to the movement of the logs to the mill over the tramroad.

Defendants in error mainly predicate their insistence that Scurlock did not receive his injury in the course of his employment on two propositions: First, that he was not employed by plaintiff in error on the day of his injury, because he was working by the day and the sawmill was closed the day he was injured, and he performed no service that day and earned no wages; and, second, that the cause of the injury was not a risk incident to Scurlock's employment, because plaintiff in error had not assumed any obligation to furnish Scurlock the tramroad as a means of ingress to and of egress from the sawmill, but that Scurlock had a mere revocable implied license from plaintiff in error to use the tramroad in going to and from his work.

The pleadings of defendants in error are directly and plainly opposed to the contention that Scurlock was not in the employment of plaintiff in error on the day he was injured. But, tested by the undisputed evidence alone, the law is settled that the relation of employer and employee existed on the day of Scurlock's injury.

In I. & G. N. Ry. Co. v. Ryan, 82 Tex. 565, 18 S. W. 219, the Supreme Court had to determine whether Ryan was in the employment of the International & Great Northern Railway Company at the time he was injured in a collision, in view of Ryan's own...