National Surety Corporation v. Bellah

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: RIVES, JONES and BROWN, Circuit
• Citation: National Surety Corporation v. Bellah, 245 F.2d 936 (5th Cir. 1957)
• Decision Date: 27 July 1957
• Docket Number: No. 16366.,16366.
• Parties: NATIONAL SURETY CORPORATION, Appellant, v. Mrs. Ollie BELLAH, and husband, W. F. Bellah, Appellees.

245 F.2d 936 (1957)

NATIONAL SURETY CORPORATION, Appellant, v. Mrs. Ollie BELLAH, and husband, W. F. Bellah, Appellees.

No. 16366.

United States Court of Appeals Fifth Circuit.

June 10, 1957.

Rehearing Denied July 27, 1957.

W. Richard Bernays and Touchstone, Bernays & Johnston, Dallas, Tex., for appellant, National Surety Corp.

John B. Wilson, Jr., Dallas, Tex., for appellees.

Before RIVES, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal from a judgment on a jury verdict for total permanent compensation benefits under the Texas Act presents the age-old, constantly recurring problem, Rodriquez v. Great American Indemnity Co., 5 Cir., 1957, 244 F.2d 484, of whether the facts meet the essential dualism of art. 8309 that the injury (1) originate in the work, business, trade or profession and (2) be received while engaged in the furtherance of the employer's business.¹ An added, substantial question arises whether art. 8306, Sec. 12e, concerning the procedure for surgical operations shall be obliquely applied, as did the trial court, to keep the admitted truth from the jury.

The facts, virtually without dispute, and certainly ample to warrant these inferences, may be easily summarized:

Mrs. Bellah, the Employee, was engaged as a sewing machine operator for Dallas Pants Manufacturing Company, the Employer, whose plant, the operation of which was indiscriminately commingled with the activities of its related, family held, affiliate, the Haggar Company, was located in an area of industrial concentration in Dallas, Texas. For efficiency in operation, to reduce overhead and possible overtime, the workday of the hourly piece-rate workers prescribed a thirty minute lunch period. Since the few drive-ins or hamburger, short order eating places in the nearby neighborhood were inadequate to serve a force of two hundred fifty people, and the alternative of going to restaurants one-half to one mile or more away involved considerable inconvenience in getting cars in and out of the Company's parking lot, exposure to uncomfortable weather conditions of rain or heat, and the likelihood that the employees could not get back on the job within the brief thirty minute period, the Employer established a company restaurant on the common premises of the Employer and its affiliate in a building next to the factory building in which the Employee worked.

Known variously as the "Haggar Cafe" or "The Haggar Company Cafe," it was operated by a Mrs. McElree whose exact legal status seems immaterial although it was considerably less than the independent American-free-business-enterprise painted by the Insurer. She did pay the wages, social security and withholding taxes for her own help, the insurance on them and purchased and paid for the food served and stood to lose or gain by the Cafe's operation. But the Employer not only furnished, maintained and repaired the premises and all furnishings, operating equipment and utilities without cost, but paid her a $50 a month guaranty. The Employer had the right, and exercised it occasionally, to use the cafe room for Company meetings to the exclusion of restaurant operations and admittedly laid down definite, principal operating policies.²

It was on November 1, 1955, that the Employee, using the Cafe as the Employer intended,³ sustained injuries when she slipped on the ubiquitous "foreign or greasy substance" on the floor of the Cafe as she proceeded to a table with a Coca Cola which she had just purchased.

That the Employee, as did others, punched out her time card and was drawing no pay for the thirty minute lunch period is, of itself, not decisive. Texas Employers' Insurance Association v. Inge, 146 Tex. 347, 208 S.W.2d 867. For, "to entitle an injured employee to compensation, it is not required that he be discharging some specific duty connected with his employment at the time of injury. In regard to such matter, it is sufficient if it is shown that the risk was incidental to the work being performed,"⁴ Safety Casualty Company v. Wright, 138 Tex. 492, 160 S.W.2d 238, 242; Liberty Mutual Insurance Company v. Nelson, 142 Tex. 370, 178 S.W. 2d 514. Nor "* * * was it necessary that the accident should have occurred during the hours of actual service * * *," Texas Employers' Insurance Association v. Anderson, Tex. Civ.App., 125 S.W.2d 674, 677, writ of error refused.

Flowing like the rivers of waters uninterruptedly from the fount, In re McNicol, 215 Mass. 497, 498, 102 N.E. 697, L.R.A. 1916A, 306; New York Casualty Co. v. Wetherell, 5 Cir., 193 F.2d 881, with only occasional diversions as it leaves the banks in application here and there, see Rodriguez v. Great American Indemnity Company, 5 Cir., 1957, 244 F.2d 484, the principle of the Texas rule on injury in the course of employment remains constant. Applying it here, we think this presented a question of fact for jury decision, Liberty Mutual Insurance Company v. Nelson, 142 Tex. 370, 178 S.W.2d 514; Parish v. Pacific Indemnity Company, 5 Cir., 221 F.2d 483, 486; Reid v. Maryland Casualty Company, 5 Cir., 63 F.2d 10, 11, which was adequately supported.

While the line may appear to be hard to draw between those marginal activities which are,⁵ or are not,⁶ within the scope of the Texas Act, the significant factor appears to be the existence of a substantial relationship between the act being done by the employee and the advancement of the employer's business affairs during the period of time when it would have important bearing on its accomplishment. This means that in many cases it is the employer himself who thus fixes the line. To one employer, the unique nature of his operations, location of the place of business, availability of labor supply, or other similar factors may make it essential in his business judgment that certain facilities be supplied for the use of employees. To another employer a similar facility would be but a generous gratuity or privilege which, while available for and used by employees, would be in their, not the employer's, interest and business.

Here, for good reason, the Employer found it to his own business advantage to maintain a cafe for its employees. It was established because businessmen, in the exercise of business judgment, concluded that it helped in the manufacture of men's clothing to provide an inexpensive, convenient place for employees to eat, so that within a very limited time they could return to active production operation. Initiated and subsidized by the Employer, it evaluated this cafe as an important, if not essential, facility. And employees using it were doing exactly what the Employer desired, for the reasons desired, at the time desired.

That these employees, while at, going to or from near, or faraway, public restaurants had no company cafe been provided, would have been wholly on their own without compensation coverage, note 6, supra, merely bears out the wisdom of this rule. For in not setting up any such establishment, the employer reflects the conclusion that his trade and business are not directly advanced. Of course, the subjective wishes or conclusions of an employer cannot take from employees the rights which the Compensation Act generally would afford them, but by his managerial action, he may expand coverage considerably when he, as he alone can do, determines what is the nature and scope of his affairs and the value of these actions as a business matter.

Here, the coincidence of use, time and place were all of the Employer's making. When so used, the activity by its nature both originated in the Employer's business and occurred while engaged in the activity treated by it as a part of its business. This, as in the surprisingly similar case, Texas Employers' Insurance Association v. Davidson, 1956, Tex.Civ. App., 295 S.W.2d 482, writ of error refused, NRE, brought the accident within Article 8309, Section 1. The Insurer's attack on the jury verdict and the insufficiency of the evidence thus fails.

The charge adequately and fairly set forth the underlying principle of the Texas rule. It was not defective in the particulars complained of and the Insurer's requested instruction No. 1 was a mere rephrasing of matters already submitted.

But when it comes to the procedural point of the exclusion of medical testimony, we think the trial court, applying too literally two Texas cases, each of which cited two of ours,⁷ fell, or was pulled, into error.

The sequence of events is here important: the injury occurred November 1, 1955. The final award of the Texas Industrial Accident Board, art. 8307, § 5, Vernon's Texas Civil Statutes, was issued February 20, 1956, followed March 16 by the Employee's suit to set it aside, art. 8307, § 5, supra. On November 1, the Employee was sent by the Employer to its regular company doctor for treatment which continued intermittently up to the time of trial held July 11, 1956. Up until two months before trial, the Employee's condition was diagnosed as injury to the lower dorsal area of the back and muscle spasm caused by a disturbance of extensive intervertebral calcium deposits. Conservative treatment and therapy were administered and the condition was considered to be of a temporary nature showing marked and almost complete recovery. Two months before trial, these doctors, for the first time, concluded that she was suffering from a ruptured intervertebral disc which, unrepaired, was deemed to be a permanent and totally disabling condition.

On the trial the Insurer proffered, with an adequate record, categorical testimony from each of these doctors that while a herniated disc in her case was deemed permanent if unrepaired, the probability of recovery by surgery was excellent. Specifically they testified that instead of total disability, there would be a maximum of three to six months post-operative total disability, followed by a few months temporary partial disability up to 50%, with zero to 10% permanent...