Safety Casualty Co. v. Wright
| Decision Date | 27 April 1940 |
| Docket Number | No. 3659.,3659. |
| Citation | 140 S.W.2d 923 |
| Parties | SAFETY CASUALTY CO. v. WRIGHT et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Montgomery County; E. T. Murphy, Judge.
Suit by Daisy Wright and others against the Safety Casualty Company to set aside an award of the Industrial Accident Board and to recover compensation for death of Valentine C. Wright, an employee of the Magnolia Pipe Line Company. From an adverse judgment, defendant appeals.
Affirmed.
McComb & Davis, of Conroe, and Vinson, Elkins, Weems & Francis and C. M. Hightower, all of Houston, for appellant.
Campbell & Foreman, of Livingston, and Pitts & Liles, of Conroe, for appellees.
O'QUINN, Justice.
This is a workmen's compensation case. Magnolia Pipe Line Company was the employer; Valentine C. Wright was the employee; and Safety Casualty Company the compensation insurance carrier. On July 21, 1938, while engaged in his employment (as alleged and contended by appellees) as an employee of said Magnolia Pipe Line Company, Valentine C. Wright received an injury resulting in his death. Mrs. Daisy Wright, wife of Valentine C. Wright, deceased, individually, and as next friend for Edna Wright, Floyd Carter Wright, and Calude Elton Wright, minor children of Mrs. Daisy Wright and her deceased husband, Valentine C. Wright, duly filed claim for compensation with the Industrial Accident Board. On February 23, 1939, the Board made its final ruling and award denying claimants compensation. Appellees duly gave notice to the Industrial Accident Board that they would not abide said ruling, and duly filed this suit to set said award aside and to recover compensation.
Appellant answered by general demurrer and general denial.
The case was tried to a jury upon special issues, upon their answers to which judgment was rendered setting aside the award of the Industrial Accident Board, and awarding compensation to appellees for 360 weeks at the rate of $20 per week beginning on July 23, 1938, same to be paid in a lump sum, less legal discount. It appearing that 65 weekly payments had matured it was ordered that same bear interest at the rate of six per cent from date of maturity until paid. As to the 295 unmatured weekly payments, it was adjudged that same should be discounted at the rate of six per cent for present payment, amounting to $5,021.15, which said sum should bear interest at the rate of six per cent from the date of judgment until paid, and judgment in favor of appellees for all of said amounts, one-third of which recovery to be paid to the attorneys representing appellees.
Appellant's brief contains five assignments of error upon which it presents three propositions. The first two urge that under the undisputed evidence at the time deceased received his fatal injuries he was not performing any duties in the course of his employment, and so his death was not compensable.
The evidence is practically without dispute. The Magnolia Pipe Line Company owned and operated an oil pipe line a portion of which passed through the territory lying between the City of Conroe in Montgomery County, Texas, and the Trinity River to the northeast. Deceased, Valentine C. Wright, was employed as a line walker to look after this portion (from the Trinity River to Conroe) of its pipe line. It was his duty to walk over this section of the pipe line, a distance of some 52 miles once each week. He was required to take with him a shovel, hammer and chisel so that he could make repairs on the line if necessary. He resided at Cleveland which was situated near the middle of the section over which he walked. There was a station at Cleveland from which he departed in the mornings when he left to go over the pipe line, and to which (as contended by appellees) he would return in the afternoon and make his daily report. He usually started out about 6 in the morning, and did so on the day he was injured. His employer did not furnish him any means of travel. He was allowed to use his own car, walk, catch a ride, or ride the public bus that ran for quite a distance parallel and near to the pipe line. That he used these means of travel was known to and approved by his employer, Magnolia Pipe Line Company. Also the pipe line company not only knew of his riding the bus as a necessary convenience in getting to and over the section of the pipe line he must travel, and did not object, but assisted him in getting a pass on which to ride the bus. He was also allowed the sum of $15 per month extra for expenses in making his daily rounds and reports. On the day that he was injured, July 21, 1938, he proceeded to go over the pipe line until he reached Conroe, and there decided to ride the bus back toward Cleveland to a point some three or four miles out from Cleveland when he intended to get off of the bus and walk over the pipe line three or four miles to Cleveland, he not having gone over that particular space that morning, and after arriving at Cleveland he, as usual (as contended by appellees), would go to the station and make his daily report. When some half way between Conroe and Cleveland on his return, something happened to the machinery of the bus and it would not run. The bus driver got out to see what was the matter and found that the battery of the bus had broken loose and fallen down breaking the gas line, and the gasoline was escaping. He attempted to stop the escape of the gasoline with a wooden plug. Wright had gotten out and in attempting to aid the driver in stopping or plugging the gas line got gasoline on his clothes, and the gasoline exploded setting Wright on fire, from which he was so badly burned that he died two days later. The gasoline tank was at the rear of the bus and the gasoline in the tank drained through the gas line from the tank to the motor in front. Lawrence Pate, the driver of the bus, testified that the gas line was broken at about its middle, and that in attempting to plug it he got under the bus and was trying to stop the flow of the gasoline with a wooden stopper; that Wright offered to assist him and that he, Wright, got under the bus and placed the wooden stopper in the broken gas line and told him to get Wright's hammer in the bus for Wright to drive the stopper tight; that he did so and Wright drove the plug; that Wright had gotten gasoline in his clothes while under the bus, and that after Wright got out from under the bus he, Wright, struck a match to light his pipe and the gas exploded and that was the way Wright's clothes became ignited.
As we understand the record, Wright had a distance of 52 miles of pipe line to walk every week. He was not required to walk the line from Cleveland to Conroe, some 24 miles, and then return to Cleveland re-walking the line. He had to return to Cleveland so that he could then walk the line from Cleveland north to the Trinity River. He must then return to Cleveland, but did not have to re-walk the line to Cleveland. After returning from the Trinity River to Cleveland, he then again started from Cleveland to Conroe over the line. His employer, the Magnolia Pipe Line Company, did not furnish Wright with any sort of transportation in making the distances and return, but did pay him $15 per month for expenses incurred in the work. It was not any part of the monthly salary contracted to be paid. Wright walked the line, sometimes rode horseback over the line, sometimes used his own car in getting over the line where it could be used, which the record reflects was at different places for several miles in a stretch, and also rode the public bus that covered the distance from Conroe to Cleveland. Highway 105 ran near to and practically parallel with the pipe line for a great part of the distance between Cleveland and Conroe; in fact the pipe line traversed portions on both sides of the railway line and Highway between Conroe and Cleveland. These methods of getting over his territory by Wright were known to the Magnolia Pipe Line Company, and it did not object at any time or in any way to his using these means. It appears that Wright had a pass giving him the right to ride on the bus. There was a conflict as to whether deceased was required to report to the station at Cleveland of his day's work or walking of the line. Mrs. Wright, and her sister who lived with them at Cleveland for a time, testified that he did make such reports, and the station agent and superintendent testified that no such requirement existed but that reports were required only when leaks in the pipe line occurred. A son, Floyd Wright, twelve years old, testified that during the preceding three or four years he occasionally went with his father over the pipe line and that on evenings when they returned to Cleveland his father went to the station and made out his report and left it with the station operator. Another son, Clifford Wright, 23 years old, testified that he sometimes worked in his father's place walking the pipe line, when his father was on vacation or was sick, and that he worked under the same supervision and regulations as did his father, and that he reported to the station manager in the morning so that the manager, Mr. Dempsey, would know what end of the line he was on, and that on his return he would report to the station, and if leaks were found he made a written report. Dempsey, the manager, denied that he required such report, but that reports were made only in case of leaks found in the line. Also the question of whether deceased was required to hold himself in readiness for a call to duty for the twenty-four hours of the day was disputed. However, it did appear that Wright was frequently called at night to go and assist in repair work on the line. It was in evidence that deceased never stayed away from home at night. He resided very near the station. He had served in the capacity of Line Walker on this particular section of the line for 19...
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