London Guaranty & Accident Co. v. Smith

• Citation: 290 S.W. 774
• Decision Date: 09 December 1926
• Docket Number: (No. 428.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: LONDON GUARANTY & ACCIDENT CO., Limited, v. SMITH.
• Court: Texas Court of Appeals

290 S.W. 774

LONDON GUARANTY & ACCIDENT CO., Limited, v. SMITH.

(No. 428.)^*

Court of Civil Appeals of Texas. Waco.

December 9, 1926.

Rehearing Denied January 27, 1927.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Suit by Miss Eura Smith against the London Guarantee & Accident Company, Limited, to set aside an award of the Industrial Accident Board. From a judgment for plaintiff, defendant appeals. Reversed and judgment rendered for defendant.

Thomas, Frank, Milam & Touchstone, of Dallas, for appellant.

R. H. Vogel, of Dallas, and J. D. Stephenson, of Hillsboro, for appellee.

STANFORD, J.

Appellee filed this suit to set aside an award of the Industrial Accident Board, and to recover of appellant, under the provisions of the Workmen's Compensation Act (Vernon's Ann. Civ. St. 1925, art. 8306 et seq.), compensation for certain injuries sustained by her on October 25, 1925, while in the employ of Martin-Dandridge Company, a subscriber to the Employers' Liability Act of the state of Texas. The only issue involved in the case was and is whether or not the injuries which were received by appellee were received while she was in the course of her employment with the Martin-Dandridge Company, within the meaning and intention of said Workmen's Compensation Act. The trial court instructed a verdict for appellee for $681.96, and entered judgment accordingly.

Under appellant's assignments of error it claims the court erred in refusing to instruct a verdict for defendant, and in rendering judgment for the plaintiff, because, as it contends, the undisputed evidence shows that at the time the plaintiff received her injuries she was not in the course of her employment within the meaning of the Workmen's Compensation Act, with the Martin-Dandridge Company. There is no conflict in the evidence. The record discloses the following state of facts bearing upon the only question involved:

Appellee was employed by Martin-Dandridge Company in Hillsboro in the capacity of saleslady and buyer, and was so employed on Saturday, October 25, 1925. The store closed at 9 o'clock on Saturday nights. Mr. Martin, the manager of Martin-Dandridge Company, about 6 p. m. on said date told appellee, as soon as she could get off, to go and get her supper and hurry back, and as soon as she got back they would go to the Wear Hotel to see a line of merchandise; that the lady who had the line of merchandise had been waiting all day to show them. So about 6:45 p. m. appellee, in response to said instructions, left the store to go and get her evening meal, and was to return in about 30 minutes to go and see said samples. Appellee rode a part of the way with a friend in going to her boarding house, and then got out of her friend's car, and started to cross the street to reach her boarding place, and was struck while in the street by a passing automobile, and injured. The place where appellee was injured in a public street was several blocks away from the premises of her employer. J. W. Martin testified as follows:

"I am president and general manager of the Martin-Dandridge Company. In that position I give instructions to my employés. On that particular evening I gave Miss Eura some instructions. To state exactly what those instructions were, I might have to go back and relate a little farther back. That day we were very busy all day, and a saleslady came in during the forenoon; had her samples all ready for us to look at. We had been buying the line for a good many years. I instructed Miss Eura to go to supper as soon as she could get off, and hurry back, so we could go over to the sample room and buy merchandise; that the lady had been waiting on us all day. The sample room was at the Wear Hotel. Miss Smith was head of her department, acting in the capacity of buyer or assistant buyer and saleslady. Her duty was to buy merchandise when necessary. At other times it was her duty to be in the department and to sell merchandise; act as a saleslady except when she was buying goods. The merchandise was bought from...