Smith v. Texas Employers' Ins. Ass'n

• Citation: 105 S.W.2d 192
• Decision Date: 12 May 1937
• Docket Number: No. 2059-6855.,2059-6855.
• Parties: SMITH v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Supreme Court of Texas

105 S.W.2d 192

SMITH v. TEXAS EMPLOYERS' INS. ASS'N.

No. 2059-6855.

Commission of Appeals of Texas, Section A.

May 12, 1937.

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

Suit under the Workmen's Compensation Act by Mrs. Grant C. Smith to set aside an award of the Industrial Accident Board in favor of the Texas Employers' Insurance Association. A judgment for Mrs. Grant C. Smith was reversed by the Court of Civil Appeals [75 S.W.(2d) 732] and judgment was rendered for the Texas Employers' Insurance Association, and Mrs. Grant C. Smith brings error.

Judgment of the Court of Civil Appeals affirmed.

White & Yarborough and F. M. Chaney, all of Dallas, for plaintiff in error.

James P. Swift, of Dallas, for defendant in error.

GERMAN, Commissioner.

This is a case under the Workmen's Compensation Law (Rev.St.1925, art. 8306 et seq., as amended [Vernon's Ann.Civ.St. art. 8306 et seq.]). In the trial court, judgment was rendered in favor of Mrs. Grant C. Smith, the defendant in error here. That judgment was reversed by the Court of Civil Appeals and judgment rendered for the Texas Employers' Insurance Association, the plaintiff in error here. 75 S.W. (2d) 732. The writ of error was granted because of the dissenting opinion of Justice Looney.

The statement of the material facts made by the Court of Civil Appeals in its majority opinion is substantially correct and is as follows:

"The undisputed facts, as disclosed by the record, bearing upon the question involved show that the deceased was an employee of the Ed C. Smith & Brother Undertaking Company, and on the occasion of the fatal injuries, he was on his evening meal hour, returning from his home to the place of his employment, and that his injuries arose out of an automobile collision occurring at the intersection of two public streets in the city of Dallas, Tex., several blocks removed from the premises of the employer, in which his personally owned and operated automobile (over which his employer had no right in or control over) was involved in a collision with an automobile owned and operated by a stranger to this suit.

"The deceased's employment embraced different kinds of work, including embalming, making arrangements with representatives of deceased persons for funerals, and conducting funerals generally. In this work, he used, exclusively, his employer's automobile. His working hours were from 8 o'clock a. m. to 10 o'clock p. m., with an intermission of an hour for his noon and evening meals, which time he was privileged to utilize to his own personal use as he saw fit, subject only to be called by telephone, when needed. His employment compelled him to be in reach of a telephone during work hours, and to leave with his employer information of his whereabouts, when he was at his meals elsewhere than his home. He was not permitted to take meals away from his home, without leaving directions at his employer's office where he could be reached, when wanted.

"On the occasion of his injuries, Grant C. Smith reached his home about 6:30 p. m., ate his evening meal hurriedly, and left hurriedly, stating to his family, that he was going back to work, the collision occurring about 7 o'clock on his return, at a street intersection in direct line from the deceased's home and the place of his employment."

After an exhaustive review of the authorities, we have concluded that the majority opinion of the Court of Civil Appeals should be upheld, and we will rather fully state our reasons for such conclusion.

It is now firmly settled by the decisions construing our statute that "in order that an employee may recover under the provisions of this law [the compensation 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 Insurance Company v. Clark, 125 Tex. 96, 81 S.W.(2d) 67, 69, and authorities there cited.

It has further been firmly settled that compensation is not allowable for injuries to employees while going to or returning from the place of their employment, except in certain particular cases. Viney v. Casualty Reciprocal Exchange (Tex.Civ.App.) 82 S.W.(2d) 1088; London Guaranty & Accident Company v. Smith (Tex.Civ.App.) 290 S.W. 774 (writ refused); American Indemnity Co. v. Dinkins (Tex.Civ.App.) 211 S.W. 949, expressly approved in Lumberman's Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Lloyds Casualty Company v. Rodriguez (Tex.Civ.App.) 36 S.W. (2d) 261 (writ refused). This conclusion is based on the premise that one injured upon the streets or highways while going to or from his work suffers his injury as a consequence of risks and hazards of the streets and highways to which all members of the public 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.

There has been developed in more recent years a clearly defined exception to the general rule concerning "street risks." See Annotations in 51 A.L.R., pp. 509 to 534, and in 80 A.L.R., pp. 126 to 133. This exception arises in favor of employees such as deliverymen, messengers, collectors, and others, who by the very nature of the work they have contracted to do are subjected to the...