Standard Acc. Ins. Co. v. Stanaland

• Court: Texas Court of Appeals
• Writing for the Court: Lane
• Citation: Standard Acc. Ins. Co. v. Stanaland, 285 S.W. 878 (Tex. App. 1926)
• Decision Date: 04 May 1926
• Docket Number: (No. 8822.)
• Parties: STANDARD ACC. INS. CO. v. STANALAND.<SMALL><SUP>*</SUP></SMALL>

285 S.W. 878

STANDARD ACC. INS. CO. v. STANALAND.^*

(No. 8822.)

Court of Civil Appeals of Texas. Galveston.

May 4, 1926.

Rehearing Denied May 27, 1926.

Appeal from District Court, Fort Bend County; M. S. Munson, Judge.

Suit by the Standard Accident Insurance Company against Raymond Stanaland to set aside an award under the Workmen's Compensation Law. Judgment for defendant, and plaintiff appeals. Reformed and affirmed.

Cole, Cole & O'Connor and William L. Kemper, all of Houston, for appellant.

J. D. Pickett, of Palestine, for appellee.

LANE, J.

The Hubbard-Miller Construction Company, engaged in the business of construction work, hereinafter called Construction Company, was a subscriber under the Employers' Liability Act, commonly known as the Workmen's Compensation Law (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246—91), and carried insurance with the Standard Accident Insurance Company, hereinafter, for convenience, called the Insurance Company.

On the 12th day of April, 1924, the Construction Company was engaged in the construction of a bridge across a creek at Sugarland, Ft. Bend county, Tex. During this construction work it maintained a group of five tents about 400 yards from the bridge, one of which was used by one S. P. Johnson, who was foreman in charge of the work of the Construction Company, in part as an office, where he kept his books and pay rolls and there paid the employees of the company for their labors; the other four tents were for use of the employees as sleeping quarters if they so chose to use them, free of charge. While the tents were so used, the foreman, S. P. Johnson, and the several occupants thereof, or some of them, habitually engaged in the reckless shooting of pistols and other firearms for sport in and around said group of tents and in close proximity to the tent occupied by the foreman, Johnson, as his office, and where the employees of the Construction Company were required to go to collect their wages. Such conduct on the part of said parties had continued for some time prior to April 12, 1924.

Raymond Stanaland, on the 12th day of April, 1924, was in the employ of the Construction Company and was assisting in the construction of the bridge above mentioned. At noon on said 12th day of April, the same being Saturday, the employees, including Stanaland, had ceased work for the week, and Stanaland, whose wages were not due, but who desired to procure an advance on labor performed by him so that he might go to Houston, made arrangements with Johnson to advance him some money on his work. To get this advance payment he was required to go to the office tent of the foreman, Johnson. After Stanaland approached said tent, and while standing in front of same for 15 or 20 minutes talking to other employees, he was accidentally struck in the head by a bullet fired from a pistol by the foreman, Johnson, while standing in the office tent, and rendered totally blind.

J. D. Pickett, an attorney employed by Stanaland, presented his claim for compensation to the State Industrial Accident Board, which board made and entered an award in favor of the claimant. Thereafter the Insurance Company in manner and form as required by law instituted this suit in the district court of Ft. Bend county to set aside the award of the Accident Board. A jury was waived, and upon trial before the court judgment was rendered in favor of Stanaland against the Insurance Company for the sum of $6,379.44, together with 6 per cent. interest thereon from the 12th day of April, 1924, to date of judgment. The Insurance Company has appealed.

Appellant contends for a reversal of the judgment upon the grounds that it was shown by the undisputed evidence: (1) That the injury received by appellee for which he sues was not one having to do with and originating in the work or business of his employer; and (2) that at the time such injury was received appellee was not engaged in the furtherance of the affairs or business of his employer; and that such injury was not sustained in the course of appellee's employment.

Appellee contends that at the time he sustained said injury he was engaged in the furtherance of the affairs of his employer, because he was at the office of his employer by prearrangement with his employer's foreman to collect the wages that were due him, on a pay day, in the usual course of the employment; that the injury was connected with and originated in the work of the employer, because it was the logical result of the employer's negligence in employing a foreman addicted to the use of intoxicating liquor, because such result was to be expected where appellee worked under a foreman in the habit of carrying a pistol and other firearms on and about his person and accustomed to the reckless shooting of said pistol both in the office where the employer's business was transacted and in the other structures which the crew used as sleeping and living quarters, because such result would reasonably follow the act of the employer in retaining in his employment a crew of men addicted to the use of intoxicating liquors and also accustomed to the reckless shooting of firearms about the office and living quarters — in short, that such injury was the natural result of the conditions under which the appellee was required to work.

By article 5246 — 82 of the Revised Civil Statutes of 1920 (Complete Tex. St., or Vernon's Ann. Civ. St. Supp. 1918), same being a section of our Workmen's Compensation Law, it is provided that the term "injury sustained in the course of employment," as used in the act, 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 the 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."

There is no material controversy as to the facts proven. It was shown that Stanaland had gone to the group of tents and to the office tent of the foreman of his employer, where and by whom employees were to be paid their wages, to get an advance payment on his labor, which the foreman had agreed to advance to him. He was at the place of injury, so far as shown, solely because he was an employee of the Construction Company. In going to the tent, where he was required to go to collect his wages, he was compelled to expose himself to the dangers incident to the habitual and reckless shooting of firearms by the occupants of the tents, including the foreman of his employer. Not only did S. P. Johnson, the foreman of the Construction Company, know of such habitual and reckless shooting and the dangers incident thereto, but the Construction Company's agents other than its foreman Johnson, who was in charge of the camp, could, by the exercise of reasonable diligence, have ascertained such existing dangerous conditions which surrounded its employees who were required to go to said tent in the course of their employment.

In Lumberman's Reciprocal Association v. Behnken, 112 Tex. 103, 246 S. W. 72, Judge Greenwood, speaking for our Supreme Court, said:

"An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business."

We may add to what was said by Judge Greenwood that injuries suffered by employees by reason of hazardous conditions permitted to exist by the employer in and about the place where the employee is required to go to get his wages are injuries which arise out of the employment. Stanaland was at the office tent to collect his wages solely because he was an employee, and he could not make such collection without going to said tent.

Speaking further in the Behnken Case, Judge Greenwood said:

"Was Behnken engaged in or about the furtherance of the affairs or business of his employer when he received the injury causing his death? He was upon the crossing provided as the means of access to his work solely because he was an employee. He encountered the dangers incident to use of the crossing in order that he might perform the duties imposed by his contract of service. Without subjecting himself to such dangers he could not do what was required of him in the conduct of the lumber company's business. He had reached a place provided and used only as an adjunct to that business, and was injured from a risk created by the conditions under which the business was carried on. To hold that he was not acting in furtherance of the affairs or business of the lumber company would be to give a strict interpretation to this remedial statute, which should be liberally construed with a view to accomplish its purpose and to promote justice."

We think that it is uniformly held by our courts upon facts similar to those of the present case that the injury suffered under such facts was received in the course of and arose out of the employment and is governed by the Workmen's Compensation Law, unless excepted from the operation to such law for another or other reasons, such as not being incident to such employment. Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S. W. 76; Texas Emp. Ins. Ass'n v. Gill (Tex. Civ....