Security Union Ins. Co. v. McClurkin, 9490.

• Decision Date: 26 December 1930
• Docket Number: No. 9490.,9490.
• Parties: SECURITY UNION INS. CO. v. McCLURKIN
• Court: Texas Court of Appeals

35 S.W.2d 240

SECURITY UNION INS. CO. v. McCLURKIN

No. 9490.

Court of Civil Appeals of Texas. Galveston.

December 26, 1930.

Rehearing Denied January 29, 1931.

Error from District Court, Grimes County; S. W. Dean, Judge.

Suit by L. C. McClurkin against the Security Union Insurance Company, appealing from an award of the Industrial Accident Board previously made and entered. To review a judgment for L. C. McClurkin, the Security Union Insurance Company brings error.

Judgment reformed, and affirmed as reformed.

King, Battaile & Dutton and John F. Battaile, all of Houston, for plaintiff in error.

Ralph W. Barry and J. B. Leigh, both of Navasota, for defendant in error.

PLEASANTS, C. J.

For brevity, the parties will be hereinafter designated appellant and appellee.

The following succinct and clear statement of the nature and result of this suit is copied from appellant's brief:

"This suit was instituted by the appellee in the district court of Grimes County, Texas, appealing from an award of the Industrial Accident Board previously made and entered. The suit therefore is one brought under the statutory act known as the Workmen's Compensation Act, and the rights and remedies of the respective parties controlled by that act. No question arises in the cause as to the jurisdiction of the trial court over the subject matter or parties—the jurisdictional prerequisites having been alleged and established.

"In his suit the appellee alleged that he was an employee of the Western Public Service Company—a subscriber under the Workmen's Compensation Act of the State of Texas; that the Insurance Company (appellant) was the insurer of the liability imposed upon the employer under said act; that he was injured while acting in the scope of his employment and entitled therefore to compensation from the appellant by reason of such fact. His wage was sufficient to entitle him to maximum weekly compensation of $20.00 per week.

"The appellee asked judgment for medical and hospital attention and expense aggregating $440.85, for compensation in the amount of $340.00 for total disability for a period of 17 weeks, and for $6000.00 by reason of partial incapacity, same being calculated at the rate of $20.00 per week for 300 weeks. (The defendant answered by general demurrer and a number of special exceptions, the nature of which, so far as they may be relevant to the questions decided in this opinion, will be hereinafter indicated, and by a general denial.)

"The case was tried before the court without a jury upon an agreed statement of facts, and judgment was rendered in favor of appellee and against the appellant in the aggregate amount of $2449.25."

Under the first proposition presented in appellant's brief it is earnestly and forcibly urged that the injury sustained by appellee was not upon the facts of this case one which is compensable under the provisions of the Workmen's Compensation Act of this state.

The following is taken from the agreed facts upon which the case was tried in the court below:

"That at the time of the injury, plaintiff was Division Superintendent of the Sales Department for the Western Public Service Company for the Navasota Division, and was in such employment, located and domiciled at Navasota, Texas; that in connection with his duties he was required to travel to the different towns in the Navasota Division which comprised several counties; that his duties in the main were the general superintending of sales and supervising all services incident to such sales; that while performing his usual duties it was customary for plaintiff to be out of Navasota and his office for four or five days per week and that in getting to and from these respective places in his territory he used an automobile furnished him by his company; that for the purpose of the Company's convenience, the company had installed at plaintiff's home a telephone which was carried in the name of the plaintiff but the bills for such telephone services were paid by plaintiff's employer; that at the time Mr. McClurkin was injured by running the needle into his foot he had just completed conversation from said telephone in connection with his employer's business, as hereinafter stated.

"That on the morning of May 31st, 1928, at or about 8:30 A. M., plaintiff, L. C. McClurkin, was aroused from his sleep at home by his wife to answer a long distance telephone call. That said telephone call was from Mr. Hereford, Superintendent of the Conroe Plant of the Western Public Service Company, situated about fifty miles from Navasota; that after completing conversation with Mr. Hereford over the telephone, plaintiff turned from the telephone and stepped on a needle which was on the floor at or near the telephone, sticking same into the ball of right foot, the eye of the needle striking one of the bones of plaintiffs foot and said needle was broken off and lodged in the flesh of plaintiff's foot, resulting in a painful injury. That in discharging the duties of his employment, plaintiff was detained from his home until 2:30 A. M. of the morning of May 31, 1928. As a result of the injury aforesaid, the plaintiff was confined to his bed for a period of eight days and to his home for seven days additional, returning to his office on June 15th; that from June 15th to July 11th, plaintiff worked at his office of his employer at Navasota, Texas, but not doing the work he was customarily engaged in; that during said period he could only work approximately one-half a day each day; that on July 11th the injury to his foot became very painful and a serious infection having set in and upon the advice of Dr. Harris of Navasota (Insurance Company Dr. S. D. Coleman being out of town and services not available), the plaintiff went to Houston to his father-in-law's home where Dr. Priester was awaiting him, who immediately made an examination of plaintiff's foot and after probing and draining, he recommended an operation."

We cannot agree with appellant in the contention that the injury received by appellee in the circumstances shown by the agreed facts before set out was not compensable under our statute. The rule of the English courts to the effect that the only risk against which the English Workmen's Compensation Law affords protection, is one which is a necessary concomitant of the occupation the workman is engaged in is not the rule established by the courts of this state in the construction of our Workmen's Compensation Act.

As we understand the decisions of our courts, an injury may originate in the work of the employee engaged in the furtherance of the business of his employer when the risk of the injury is not a necessary concomitant of the work. If the risk is incidentally attendant upon work in furtherance of the employer's business and does not come within the exceptions contained in section 1, art. 8309, the employee is protected by our statute.

Section 1, art. 8309, of our Revised Statutes (1925), provides:

"The term `injury sustained in the course of employment,' as used in this law, shall not include:

"1. An injury caused by the act of God, unless the employee is at the time engaged in the performance of duties that subject him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public.

"2. An injury caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.

"3. An injury received while in a state of intoxication.

"4. An injury caused by the employee's willful intention and attempt to injure himself, or to unlawfully injure some other person but 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."

In going to the telephone, placed in his apartment by his employer for the purpose of communicating with him, to answer a call from his employer, the appellee was performing the duties of his employment and furthering the business of his employer, and the injury received by him in answering the call was one having to do with and originating in the work or business of his employer. The risk or hazard taken by appellee in answering the call was taken in order to perform the duties of his employment, and the injury caused thereby is compensable under the article above quoted. The fact that the injury occurred in appellee's apartment, and that the needle upon which he stepped was probably dropped there by some member of his family, does not affect the question. When his employer placed the phone in appellee's apartment and made it appellee's duty to answer its calls at all times, appellee in the performance of the duties of his employment was required to take all reasonable risks in answering the call, and the statute intended to protect him against such risk. Pace v. Appanoose County; 184 Iowa, 498, 168 N. W. 916, 918. In the case cited the Supreme Court of Iowa says: "What the law intends is to protect the employee against the risk or hazard taken in order to perform the master's task."

In the case of Procaccino v. Horton & Sons, 95 Conn. 408, 111 A. 594, 595, in which an employee was injured while...