Rodriguez v. Great American Indemnity Company

• Decision Date: 13 June 1957
• Docket Number: No. 16426.,16426.
• Citation: 244 F.2d 484
• Parties: Maria RODRIGUEZ, individually and as next friend of Antonio and Evangelina Rodriguez, minors, and Daniel Rodriguez, Appellants, v. GREAT AMERICAN INDEMNITY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

244 F.2d 484 (1957)

Maria RODRIGUEZ, individually and as next friend of Antonio and Evangelina Rodriguez, minors, and Daniel Rodriguez, Appellants, v. GREAT AMERICAN INDEMNITY COMPANY, Appellee.

No. 16426.

United States Court of Appeals Fifth Circuit.

May 3, 1957.

Rehearing Denied June 13, 1957.

Charles J. Lieck, San Antonio, Tex., for appellants.

Carl Wright Johnson, Nat L. Hardy, San Antonio, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and TUTTLE, Circuit Judges.

HUTCHESON, Chief Judge.

Brought under the Texas Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., by the widow and child of the deceased employee, the suit was for death benefits provided by the Act for compensable injuries.

The claim was that, though the death had occurred not during, but after, working hours and not at his place of work, but as a result of a fire in his lodgings after he had retired for the night, decedent's death was, nevertheless, compensable under the statute as one occurring in the course of, and originating in, his employment within the meaning of the controlling provisions of the Act, because it occurred when in order to work at his job he was required to be away from his home.

The defense wag that, since the hours and the rate of pay per hour were fixed by his contract of employment and the employee was free to and did select his own lodging place, the death of the deceased did not have to do with and originate in the work of his employer, and the defendant was not liable as insurer because the death was not a compensable injury under the Act.

Tried to the court without a jury on a stipulation and on undisputed deposition testimony, the district judge, finding the facts¹ in accordance therewith, concluded:

"* * * that Antonio Rodriguez at the time he received the injuries which resulted in his death in the hotel and in the fire was not in the course of his employment with the General Supply Co. within the meaning of the Texas Workmen\'s Compensation Act. The court further concludes that the plaintiffs should take nothing by reason of their suit against the defendant."

From the judgment entered in accordance with this conclusion, plaintiffs have appealed. Here, in support of their position that, though if the injury had occurred in San Antonio, where Rodriguez lived, he would not have been covered while away from his work and asleep, he was covered at Del Rio because his case comes within the away from home exception to the general rule, appellant cites cases of salesmen, collectors, and others employed on a 24 hour basis, whose employment carried them away from their home and kept them on general call, such as Texas Employers' Ins. Ass'n v. Harbuck, Tex.Civ.App., 73 S.W. 2d 113 and Texas Employers' Ins. Ass'n. v. Cobb, Tex.Civ.App., 118 S.W.2d 375, and presses upon us the argument that Rodriguez's case fits the pattern with which they deal.

Appellee, on its part, citing Associated Employers' Reciprocal v. Simmons, Tex. Civ.App., 273 S.W. 686; Wynn v. Southern Surety Co., Tex.Civ.App., 26 S.W.2d 691² (writ of error refused); Smith v. Texas Employers' Insurance Ass'n., 129 Tex. 573, 105 Texas Employers' Ins. Ass'n v. Sparrow, 134 Tex. 352, 133 S.W. 2d 126. Insisting that the facts in this case are entirely different from the facts in the cases cited by appellant, it points to the difference inherent in what was required by the work here and what was required to be done and was done in the Harbuck and Cobb cases. So pointing, appellee, calling attention to the fact that in each of those cases the employer was held by the court to be generally employed on a twenty-four hour basis, without fixed time, place, or pay per hour for doing the work, thus states its case:

"On the other hand, Rodriguez had duties to perform only for eight hours a day during a specified work day. These duties were performable at a specific place, to-wit, building of a high school building in Del Rio, Texas. He was employed only occasionally by this company, and frequently worked for other contractors. He had no property of his employer in his care or possession. The tools which he used were undoubtedly his own, and these he left on the job between periods. When his work day was over, Rodriguez could go anywhere he wanted to go, and do anything which he wanted to do until sixteen hours later when he was supposed to report back for work on the job. His only limitations were geographical in nature. During his off hours he was not required to keep his employer informed as to his whereabouts. He was not subject to any direction. He was not required to make himself available for recall to duty. He was completely on his own."

From the above contrary contentions of the parties, it is apparent that the correct decision of the question presented here requires a preliminary statement of the applicable law and we think we cannot do it better than by quoting from the very well considered opinion of this court in New York Casualty Co. v. Wetherell, 5 Cir., 193 F.2d 881, 882, an opinion in which, though there was a dissent, it was based upon a disagreement not with the statement of the controlling legal principles but with their application to the particular facts of that case.

"Pertinent in arriving at a solution of the question here presented is that portion of the Workmen\'s Compensation statute found in Article 8309, Sec. 1, Vernon\'s Ann. Civ.St., which provides that the term `injury sustained in the course of employment\' as used in the law `shall include all other injuries of every kind and character 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.\' The Texas courts in construing this statute, following the rule announced by the Supreme Court of Massachusetts in the case of In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306, have consistently held that `in order that an employee may recover under the provisions of this law, proof that his injury occurred, while he was engaged in or about the furtherance of the employer\'s affairs or business is not alone sufficient. He must also show that his injury was of such kind and character as had to do with and originated in the employer\'s work, trade, business, or profession.\' Texas Indemnity Ins. Co. v. Clark, 125 Tex. 96, 81 S.W.2d 67, 69, and authorities there cited.

"It is the general rule, established by the great weight of authority, that where an injury occurs at a time not within a contractual exception, employees may not recover compensation for injuries received while going to and from the place where they are to perform labor for the employer. The following are but some of the many cases in which compensation has been denied to employees who were injured out of work hours in going to and from work. American Indemnity Co. v. Dinkins, Tex.Civ.App., 211 S.W. 949; London Guaranty & Accident Co. v. Smith, Tex.Civ.App., 290 S.W. 774; Aetna Life Ins. Co. v. Palmer, Tex.Civ.App., 286 S.W. 283; Central Surety & Ins. Corp. v. Howard, 5 Cir., 47 F.2d 1049; Maryland Casualty Co. v. Kramer, 5 Cir., 62 F.2d 295. But injuries received while going to and returning from work may often be compensable as where, by the terms of the contract of employment, the employee is required to perform services for the employer upon the streets; or 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, or in such close proximity and relation to the employer\'s premises as to be in practical effect a part of the employer\'s premises; or where the contract provides for transportation or that the employee should be paid for the time taken in going to and returning from his place of employment; or in cases of salesmen, messengers, deliverymen and the like, who are required and obliged to be continuously on the street in the course of their employment, or to those who are sent on missions for the employer to places

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