Maryland Casualty Co. v. Long

• Decision Date: 15 August 1928
• Docket Number: (No. 3564.)
• Citation: 9 S.W.2d 458
• Parties: MARYLAND CASUALTY CO. v. LONG.
• Court: Texas Court of Appeals

9 S.W.2d 458

MARYLAND CASUALTY CO. v. LONG.

(No. 3564.)

Court of Civil Appeals of Texas. Texarkana.

August 15, 1928.

On Rehearing October 4, 1928.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

Suit by Willie Long against the Maryland Casualty Company to set aside an order of the Industrial Accident Board disallowing his claim for compensation. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Rodgers & Rodgers, of Texarkana, for appellant.

Wm. V. Brown, of Texarkana, for appellee.

HODGES, J.

In September, 1926, the appellee, Long, while crossing a public highway in the city of Texarkana, was struck by a passing automobile and injured. He was at the time an employee of the United States Glass Company, who carried an insurance policy with the appellant under the terms of the Workmen's Compensation Act (Vernon's Ann. Civ. St. 1925, arts. 8306-8309). After the injury Long filed with the Industrial Accident Board a claim for compensation. His claim was disallowed, and he filed this suit to set aside the order of the board. This appeal is from a judgment in his favor for the lump sum of $3,909.21.

The court submitted only one issue to the jury, which was the following:

"Do you believe from the evidence that the plaintiff, Willie Long, on or about September 17, 1926, sustained an injury in the course of his employment as a laborer for the United States Glass Company?"

To which the jury answered, "Yes." As explanatory of the above question, the court added:

"To aid you in answering the foregoing issue, you are instructed that by the words `injury sustained in the course of his employment' is meant all injuries 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 his employer, whether upon the employer's premises or elsewhere."

One of the errors assigned is that the verdict is not supported by the evidence. Long testified, in substance, that at the time of his injury he was working for the United States Glass Company. He was making $3 a day, and working seven days a week. He went to work at 4 o'clock in the afternoon, and worked until midnight. He testified:

"At the time I received this injury, I was going by to call a man, Will Davis. Mr. Nick Gilpin told me to go by there; he was night foreman, and he had some work that he wanted Davis to do, and told me to go by and get him. I never did get to his house, because an automobile ran over me, and I never did get to tell him what Mr. Gilpin told me to. I had called men to go to work on the way home lots of times before this — this wasn't the first time that ever had happened."

On cross-examination he stated that he was injured on Buchanan avenue, a public street in the city of Texarkana, inside of the city limits. Will Davis lived on Capp street, about one block from where plaintiff lived. He further stated:

"If I had not been going to Will Davis' house, I would not have been going the same way. I would have gone down Jones avenue going home, but the way I was going was to his house — it was closer to his house that way than the way I go home. Going home I would have crossed Buchanan avenue one block further up — north. If I had been going home, I wouldn't have gone as far up Buchanan as I did — I would have gone down Jones avenue direct home, like I had been going. * * * When I got hit, I was going right over to Capp street."

The substance of the plaintiffs testimony was that he had left his work a little before his quitting time, and, at the request of his foreman, went out of his way to deliver the message to Davis, whose services were needed at the plant. He further testified that, if Davis had been unable to respond to the call, he would have gone back to the plant to notify the foreman. He intended, however, to go on home if he found Davis could go to the plant. The foreman, from whom Long received his instructions to call Davis, did not testify in the trial, and there was no evidence directly corroborating what Long stated. There was some testimony which tended to contradict his statements. But the jury had a right to accept as true the testimony of Long, and evidently that was done.

If what Long stated be true, then clearly he was injured while in the service of his employer, and was entitled to compensation. Consolidated Underwriters v. Breedlove (Tex. Com. App.) 265 S. W. 129; Beaudry v. Watkins, 191 Mich. 445, 158 N. W. 16, L. R. A. 1916F, 576. This is not a case in which the employee was injured on his way home, after having abandoned his work for the day. Here Long was still engaged in furthering the interest of his employer when injured. Crossing the public highway at the time and under the circumstances was a necessary incident to the performance of that service.

Objection is made to the explanatory portion of the court's charge, because it was —

"misleading and does not correctly give to the jury the law applicable to the facts in testimony in this case, and the meaning of such statute has been clearly and definitely defined and construed by the courts of Texas limiting such language to such an extent that it is wholly inapplicable as part of the charge under the facts in this case."

The explanation is in the language of the statute, and no special charge was presented asking for a more comprehensive definition.

Appellant requested the court to submit the following special charge:

"Did Willie Long, plaintiff, sustain the injuries complained of while crossing a public street in the city of Texarkana, Texas, on his way home from his work?"

The refusal to submit that interrogatory is assigned as error. It is undisputed that the injury did occur on a public street. It is also conceded that Long's ultimate destination that night was his home. He expected to go there after delivering the message to Davis. However, he was traveling out of his way in order to communicate with Davis. If the jury had answered the requested interrogatory in the affirmative, it would not have required a...