Lumberman's Reciprocal Ass'n v. Behnken

Decision Date29 November 1922
Docket Number(No. 3562.)
Citation246 S.W. 72
CourtTexas Supreme Court

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

Action by Mrs. Josie Behnken and others against the Lumberman's Reciprocal Association to set aside a final ruling and decision of the Industrial Accident Board. From a judgment of the Court of Civil Appeals (226 S. W. 154), affirming a judgment of the district court, the defendants appeal. Affirmed.

E. J. Fountain, Jr., and Andrews, Streetman, Logue & Mobley, all of Houston, for appellants.

Jas. A. Harrison, of Beaument, for appellee.


This case was tried on an agreed statement of facts, which may be summarized, for the purpose of this opinion, as follows:

The Hartburg Lumber Company, on June 5, 1919, operated a sawmill at Hartburg, Tex., employing about 75 men, including L. Behnken, and carried an insurance policy, obligating plaintiff in error to pay the compensation provided by the Texas Workmen's Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246—91) for the death of any employee of the company.

The town consisted entirely of the Hartburg Lumber Company's plant, including its mill, planer, storehouse, office, and the boarding house and residences for its employees. The railroad track of the Kansas City Southern Railway Company ran through Hartburg, so that the mill, planer, storehouse, boarding house, and some residences for negro and Mexican employees were on the north side of the track, while the residences for the white employees were on the south side. A public road, running from the town of Lemonville to the town of Ruliff, was on the south side of the railroad track, in front of the residences for white employees. These residences belonged to the company, and were rented for cash by the month.

There is a crossing from the public road over the railroad track, leading to the various buildings north of the track on the property of the Hartburg Lumber Company. The railroad track is not fenced. The crossing above mentioned is the only well-defined crossing over the railroad track. It was used by any member of the public desiring to go to any part of the company's mill, store, or boarding house.

The employees of the Hartburg Lumber Company customarily went for meals to their rented homes or to the boarding house. The white employees, who occupied the residences south of the railroad, including L. Behnken, went for their meals, at noon, to their respective residences, and in so doing necessarily crossed the railroad track.

The lumber company's buildings, the railroad track, the public road, and the railroad crossing are accurately delineated on the following map, viz:


On June 5, 1919, L. Behnken quit work at noon, went home and ate dinner, and started back at the usual time to his work, where he was due at 1 o'clock. While on the crossing, he was accidentally struck and killed by a train operated over the Kansas City Southern Railway Company's track. The train did not stop at Hartburg, and had nothing to do with the business of the Hartburg Lumber Company.

The wages which Behnken was earning were agreed to, as was the status of defendants in error as his dependent widow and children.

Immediate notice was given of Behnken's injury and death, and the claim of defendants in error for compensation was filed within the statutory time. The Industrial Accident Board rejected the claim, concluding that the injuries which caused the death of the deceased were not sustained in the course of his employment with the Hartburg Lumber Company.

This suit was brought by defendants in error against plaintiff in error to set aside the final ruling and decision of the board, and to recover compensation for Behnken's death. It resulted in a judgment for defendants in error in the lump sum of $3,822, which was affirmed by the Galveston Court of Civil Appeals, 226 S. W. 154.

The Workman's Compensation Law provides for compensation for the death of an employee from "an injury sustained in the course of his employment," and declares that "all other injuries of every kind and character," except certain enumerated injuries from causes or under conditions quite different from any attending the injury to Behnken, shall be included within the term "injury sustained in the course of employment," when "having to do with and originating in the work, business, trade or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of the employer whether upon the employer's premises or elsewhere." Articles 5246—5, 5246—82, Vernon's Sayles' Texas Civil Statutes, 1918 Supplement.

The principal contention of plaintiff in error is that Behnken's injury did not have to do with and originate in the work or business of his employer, and that Behnken was not engaged at the time of injury in or about the furtherance of the affairs or business of his employer, and that hence the injury was not received in the course of Behnken's employment.

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. As tersely put by the Supreme Court of Iowa:

"What the law intends is to protect the employee against the risk or hazard taken in order to perform the master's task."Pace v. Appanoose County, 184 Iowa, 498, 168 N. W. 918.

Though injuries arising from risks incidental to employment most frequently occur during hours of active labor and on premises within the control of the employer, yet they are not always so circumscribed either as to time or place. I. & G. N. Ry. Co. v. Ryan, 82 Tex. 571, 18 S. W. 219; H. E. & W. T. Ry. Co. v. McHale, 47 Tex. Civ. App. 360, 105 S. W. 1151; Latter's Case, 238 Mass. 326, 130 N. E. 638. Our statute declares that it is not necessary to fix liability that the injury be sustained on the employer's premises.

In Latter's Case, supra, the injury occured shortly before the time to begin the employee's labor. The injury was not sustained on the employer's premises, but in an elevator controlled and operated by his landlord. By permission of both the landlord and the employer the elevator was used as a customary means of access to the employer's premises. It was rightly determined that the employee's right to use the elevator was derived from his employment, and that the risk arising from such use was incident to the employment.

So, in every case, where injury occurs at a place furnished by the employer, in the interest of his business, as the necessary and immediate means of access to where the employee is required to labor, from a danger caused by the permanent condition of such place, and at a time when the employee is expected or required to enter the plant, the injury is as truly the result of a risk incident to the employment as though happening within the plant where the employee does his regular work, and during the hours for such work.

Honnold states in his work on Workman's Compensation, vol. 1, § 122, p. 453:

"Where the injury has arisen through the workmen using special modes of access provided by their employers to enable them to go to or come from the actual place of employment, the courts have uniformly held that it arose out of the employment."

The rule is well illustrated by the case of one Zabriskie, who was struck by an automobile on a principal street in the city of Paterson and thrown on a railroad track, where he was again struck by a railroad train. He was going from where he was employed to a toilet, intending to return from the toilet to resume his work. The toilet was habitually used by employees with the employer's acquiescence. In holding that Zabriskie's injury arose out of his employment, the New Jersey Court of Appeals and Errors, referring to the danger to Zabriskie in the use of the street, said:

"It was not the danger of an ordinary member of the public crossing a street on his own business, but was the subjection of the employee to that danger by the conditions of his employment. The fact that the accident may have been and probably was due to the negligence of the driver of the automobile, and perhaps also to the contributory negligence of the deceased, tends to cloud the issue, but does not differentiate the situation from that of any workman who is required in the performance of his work to go into a dangerous place and incur the dangers connected with that place." Zabriskie v. Erie Railroad Co., 86 N. J. Law, 266, 92 Atl. 385, L. R. A. 1916A, 317.

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