Republic Underwriters v. Terrell, 1882.

• Decision Date: 17 March 1939
• Docket Number: No. 1882.,1882.
• Citation: 126 S.W.2d 752
• Parties: REPUBLIC UNDERWRITERS v. TERRELL et al.
• Court: Texas Court of Appeals

Page 752

126 S.W.2d 752

REPUBLIC UNDERWRITERS v. TERRELL et al.

No. 1882.

Court of Civil Appeals of Texas. Eastland.

March 17, 1939.

Appeal from District Court, 104th Judicial District, Taylor County; M. S. Long, Judge.

Suit under the Workmen's Compensation Act by the Republic Underwriters to set aside an award of the Industrial Accident Board in favor of Mrs. Ethel Terrell and others. From a judgment of the District Court denying relief, plaintiff appeals.

Reversed and judgment rendered for plaintiff.

Smith, Goldsmith & Bagley, of Austin, and Wagstaff, Harwell, Wagstaff & Douthit, of Abilene, for appellant.

Callaway & Callaway, of Brownwood, for appellees.

LESLIE, Chief Justice.

This is a workmen's compensation case. The claim was allowed by the Industrial Accident Board. The insurance carrier, the Republic Underwriters, carried the controversy to the district court where a trial was had before the court and jury, resulting in the verdict and judgment in favor of deceased's sole beneficiaries, his widow, Mrs. Ethel Terrell, and Thomas E. Terrell, Jr. This appeal is prosecuted from that judgment.

The only issue submitted to the jury, other than that involving lump sum payment, was special issue No. 1, as follows: "Do you find from a preponderance of the evidence that at and before the time that Thomas E. Terrell was killed, he was furnished gasoline free of charge by the Midway Refining Company for use in his automobile, for the purpose of transportation to and from his home to his place of employment? Answer `Yes' or `No.'" The jury answered "Yes."

The appellant's first contention is that the appellees' pleadings and evidence were insufficient, as a matter of law, either to state or establish that Thomas E. Terrell was killed while engaged in or about the furtherance of his employer's affairs or business, or that what he was doing at the time he was killed had to do with and originated in his employer's work, trade, business or profession. The trial court overruled appellant's general demurrer, and motions for instructed verdict and judgment non obstante veredicto.

Under this proposition, the pleadings will first be looked to. It is alleged that at the time of his death the employee Thomas E. Terrell was employed by the Midway Refining Company, to work at its Refinery, and then follows the allegation that his compensation was to be "a salary of $90 per month, and for further consideration that the said Refinery would furnish to the said Thomas E. Terrell all necessary gasoline to operate his Buick automobile from the town of Goldsboro [where the Refinery was located] to the town of Lawn which is located about six miles north of said town of Goldsboro."

That "at the time of said contract of employment, which was a verbal contract, the said Thomas E. Terrell, hereinafter referred to as deceased, resided in the town of Brownwood and desired to move his family to the point where he was employed or as near thereto as he could, but was unable to obtain a residence in the town of Goldsboro where said Refinery is located, and the little village of Lawn was the nearest point where he could rent or obtain living quarters for his family and it was expressly agreed and understood that because of this situation that the said Midway Refinery Company in addition to his salary of $90 per month would furnish to the said deceased all necessary gasoline to and from his home. That his hours of work were from seven o'clock p. m. to seven o'clock a. m. he being on the night shift, and he left his home each afternoon around six o'clock in order to go to his work, it being his agreement with his employer and his custom, that he would drive to and from his work in his Buick automobile owned by said deceased, and operated with the gasoline furnished him by his said employer."

It is then further alleged that in the afternoon of June 13, 1936, the deceased "left his home in Lawn about ten after six for the purpose of driving to Goldsboro to begin his labors with said employer and at a point about three miles south of the town of Lawn in trying to pass by another motor vehicle on the said highway, and while he was driving along the public highway which runs from the town of Lawn to the town of Goldsboro, he accidentally caused his said Buick automobile to run into and collide with a cement banister of a bridge or culvert on said road completely wrecking said automobile and causing the immediate death of the said Thomas E. Terrell. The defendants allege that it was necessary for the said Thomas E. Terrell to go from his home each evening and return to his home each morning and that in truth and in fact at the time of said accident and death of aforesaid, he was in the course of his employment within the meaning and purview of the Workmen's Compensation Act of the State of Texas."

From the standpoint of the ruling on the general demurrer, and also assuming that the matters alleged were established by competent evidence, are the appellees entitled to recover under such facts? That is, was the employee Terrell injured or killed in the course of his employment? In their briefs, the appellant and appellees concede there is no Texas authority directly on the point.

It is the general rule that in such cases compensation is not allowed for injuries to employees while going to or returning from the place of their employment. The reason for the rule is that one injured on a street or public highway while going to or from his work suffers his injury as a consequence of the common risk or hazard of streets and highways to which members of the public in general are alike subject, and not as a consequence of risks and hazards having "to do with and originating in the work, business, trade or profession of the employer * *."

"The statute clearly implies, as has frequently been held, that the injury has to do with and originates in the employment when such injury is the result of some peril, risk, or hazard inherent in or incident to the conduct of the work or business." Smith v. Texas Emp. Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192, 193.

Obviously the above rule implies the use of a street or highway by the workman merely to go to or from his work, and a different case is presented as soon as it is established that the work itself necessarily involves exposures to the perils and hazards of the street or highway. Smith v. Texas Emp. Ins. Ass'n, supra; Annotations, page 978, following opinion in Marley v. Orval P. Johnson & Co., 215 Iowa 151, 244 N.W. 833, 85 A.L.R. 969.

It has also been held that the employee's injury occurs within the course of his employment when he is injured while using the conveyance or means of transportation to and from work furnished by his employer as a part of the consideration for the services of the employee. Western Indemnity Co. v. Leonard, Tex. Com.App., 248 S.W. 655; Watts v. Continental Cas. Co., Tex.Com.App., 18 S.W. 2d 591; Jones v. Casualty Reciprocal Exchange, Tex.Civ.App., 250 S.W. 1073; Viney v. Casualty Reciprocal Exchange, Tex.Civ.App., 82 S.W.2d 1088.

Also, the injury is held to occur in the course of employment where the appellee at the time of injury is using the means of ingress or egress from the premises (place of work) of the employer and the same have been provided by the employer for that purpose. Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S.W. 76.

It is sometimes said that an injury occurring under either of the circumstances last mentioned is an exception to the general rule first stated, namely, that an injury...