Safety Casualty Co. v. Wright, 7768.

CourtSupreme Court of Texas
Citation160 S.W.2d 238
Docket NumberNo. 7768.,7768.
Decision Date14 January 1942
160 S.W.2d 238
WRIGHT et al.
No. 7768.
Supreme Court of Texas.
January 14, 1942.
Rehearing Granted February 18, 1942.
Further Rehearing Denied March 25, 1942.

Page 239


Page 240

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

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. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (140 S.W.2d 923), and defendant brings error.

Judgments of the Court of Civil Appeals and of the district court reversed, and cause remanded to the district court for new trial.

Vinson, Elkins, Weems & Francis and C. M. Hightower, all of Houston, and McComb & Davis, of Conroe, for plaintiff in error.

Pitts & Liles, of Conroe, and Campbell & Foreman, of Livingston, for defendants in error.

CRITZ, Justice.

This is a workmen's compensation case. On July 22, 1938, Valentine C. Wright received burns which resulted in his death two days later. At the time of his injury Wright was an employee of Magnolia Pipe Line Company. Safety Casualty Company was such employer's compensation insurance carrier. Mrs. Daisy Wright, surviving widow of Valentine C. Wright, deceased, on behalf of herself, and on behalf of the three minor children of herself and the deceased, duly filed claim for compensation with the Industrial Accident Board. Such Board denied compensation, and Mrs. Wright in her own behalf, and as next friend of the minor children, filed this suit in the District Court of Montgomery County, Texas, against the above-named insurance carrier to recover compensation under the Workmen's Compensation Laws of this State. Trial in the district court, where the case was submitted to the jury on special issues, resulted in a verdict and judgment for Mrs. Wright et al. This judgment was affirmed by the Court of Civil Appeals. 140 S.W. 2d 923. Safety Casualty Company brings error.

In response to Special Issue No. 1 of the court's charge, the jury found that Wright was acting within the course of his employment with Magnolia Pipe Line Company at the time he received the burns which resulted in his death. By proper assignment the casualty company contends that there is no evidence in this record to sustain the above finding. Such company further contends that the undisputed facts of this record affirmatively show that Wright was not acting within the course of his employment with the above-named employer at such time. These contentions make it necessary for us to make an extended statement of the facts.

The material facts of this record, as established by the verdict of the jury, show: That at the time of his injury Wright was employed by Magnolia Pipe Line Company as a pipe line walker; that at such time the above-named company owned and operated an oil pipe line, a section of which lay between the City of Conroe, in Montgomery County, and the Trinity River; that Wright's duties required him to walk this pipe line between the above two points, a distance of about fifty-two miles, once each week; that Wright was required to repair any leaks that he might find in the above line, and for that purpose was required to carry certain tools; that necessarily these tools would have to be carried back after the end of the section of the line walked had been reached; that Wright lived with his wife and children in Cleveland, which was about midway between the ends of the section of the pipe line Wright was employed to walk and keep in repair; that the pipe line company had a station in Cleveland from which Wright would usually depart in the morning when he left to walk the pipe line; that Wright would return to such station in the afternoon, or when he got back from walking the pipe line, and make his report; that Wright usually started out to walk the pipe line about six o'clock in the morning, and did so on the day he received these fatal burns; that the pipe line company did not furnish Wright any means of travel in going to the pipe line and coming back after he had completed his walking thereof; that the pipe line company allowed Wright $15 per month expenses; that the pipe line company did not attempt to exercise any manner of control over Wright's means of travel in

Page 241

going to and coming from the pipe line; that in such instances he was allowed to choose his own mode and means of travel; that in such instances Wright sometimes used his own car, sometimes walked, sometimes caught a ride, and sometimes rode the public bus, which ran for quite a distance parallel with and near to the pipe line; that Wright's employer knew that he used all of the above means of travel and approved the same; that Wright had a pass over the bus line above mentioned, which the pipe line company had assisted him in obtaining; that on the day he was injured Wright began walking the pipe line some four miles from Cleveland, and walked to Conroe; that on reaching Conroe, Wright boarded the bus above mentioned, intending to ride thereon back to the point on the pipe line where he had begun walking in the morning, and that when such point was reached Wright intended to get off of the bus and walk the pipe line back to the station at Cleveland, where he would make his report. At this point, we think we are justified in concluding that Wright had his tools with him in returning to the point above designated.

The testimony further shows that when the bus on which Wright was riding reached a point about midway between Conroe and Cleveland something happened to the bus which caused it to stop. It was during this stop that Wright received the burns which caused his death.

The testimony is somewhat conflicting as to just how and where Wright received his burns. In regard to such matter the record presents two distinct and very divergent theories, viz.:

(a) According to the statement of the deceased, made very shortly after the accident, it was shown: That when the bus-stopped it was discovered that its gas line was broken and leaking gasoline from such break; that the bus driver asked Wright to get under the bus and stop the leak; that Wright attempted to comply with such request, and went under the bus in an effort to do so; that while Wright was under the bus the driver struck a match and threw it on the place where the gasoline which had leaked from the broken gas line had accumulated; that such lighted match caused the gasoline to explode; and that such explosion blew Wright almost out from under the bus, and fatally burned him.

(b) According to the testimony of the bus driver it was shown: That when the bus stopped he investigated the cause and found that the gas line was broken; that gasoline was leaking from such break; that he secured a wooden plug or pin and started to get under the bus to drive the plug into the broken end of the gas line; that Wright insisted that he be permitted to get under the bus and stop the leak; that Wright took the plug, got under the bus, and found another leak farther back; that Wright then got out from under the bus; that he, the driver, then decided to catch a ride to Conroe or Cleveland to get help; that he, the driver, then stepped in front of the bus; that when he did so Wright was standing on the right-hand side of the bus by the door; that Wright then reached in his pocket to get his tobacco and get a match to light his pipe; that Wright then let his hand drop beside him, and the explosion happened. At this point, we think that the record taken as a whole justifies the conclusion that Wright's clothing was ignited, causing him to be fatally burned. We here quote the following facts found by the Court of Civil Appeals in its opinion on motion for rehearing [140 S.W.2d 927]:

"(1) That the accident happened on Thursday about 3 o'clock in the afternoon and from the point where deceased intended to get off of the bus and walk the line to the Magnolia pump station at Cleveland, Texas, was a distance of some 3 or 4 miles. Under deceased's contract of employment he was not required to walk this portion of the pipe line that afternoon, but could have walked it the next day, Friday, or on Saturday, because he had walked the east end from Cleveland to the Trinity River the first part of the week. With the exception of this portion of the line deceased's entire section of 52 miles had been covered that week.

"(2) The Magnolia Pipe Line Company did not require deceased to return to Cleveland at the end of each day, but he was privileged to spend the nights away from home, and had spent the nights at Trinity River (the terminus of the east end of his line) and at Conroe (the terminus of the west end of the line). However he was frequently called out at night to assist in emergency repairs on the line, and as he resided at Cleveland, which was near the middle of the section of line he had to cover, and lived near the pipe line station he practically all of the time returned to his home at...

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