Texas Compensation Ins. Co. v. Matthews

Decision Date06 December 1973
Docket NumberNo. 18233,18233
Citation504 S.W.2d 545
CourtTexas Court of Appeals

Royal H. Brin, Jr., Strasburger, Price, Kelton, Martin & Unis, A. Don Emory, Jr., Dallas, for appellant.

Lawrence P. Hochberg, Hochberg, Yuill & Bernstein, Dallas, for appellee.

GUITTARD, Justice.

This workmen's compensation case was tried without a jury on an agreed statement of facts. The sole question in the trial court was whether plaintiff's injuries were sustained in the course of her employment. The trial court held that they were, and we affirm.

Plaintiff was injured on two occasions when crossing a street on the way from her parking lot to her place of employment. She was employed by Southwestern Bell Telephone Company at its building on the southeast corner of Haskell and Bryan Streets in Dallas. Normally she had no occasion to cross Bryan Street on her way to work. She customarily parked her car in a private lot on the south side of Bryan Street, east of the telephone company's property, and walked west along the public sidewalk on the south side of Bryan Street to the building entrance. Several months before she was injured, the telephone company had engaged a contractor to make extensive improvements to its building. The contract required the contractor to 'take every measure to protect all persons and property . . . from injury arising out of performance of the work.' In accordance with this requirement, the contractor had erected a barricade enclosing the sidewalk adjacent to its building and the south ten feet of the street. The barricade extended from the building entrance to a point thirty-seven feet east of the telephone company's east boundary. On the east end of the barricade the contractor had posted two signs, which read as follows:

Sidewalk Closed For Your Protection Please Cross Street

Thank you Danger Keep Out Construction

Also at the east end of the barricade was a gate on which the following sign appeared:

This Entrance Only For Employees

Suppliers And Sub-Contractors

(Including Dee Brown Masonry, Inc.)

Of Henger Construction Co.

Bell System Employees And Members

Of The General Public On Business

With The Bell System--Use Main

Entrance at 4100 Bryan Street

Within a few feet of these signs was a crosswalk marked by the city for pedestrians to use in crossing Bryan Street. After erection of the barricade, plaintiff had used this crosswalk to cross to the north side of Bryan Street. She would then proceed west along the sidewalk on the north side of Bryan Street to the corner of Haskell Avenue, then south across Bryan Street, and finally east along a covered walkway to the entrance of the building . Both of plaintiff's injuries resulted from falls when she was crossing to the north side of Bryan Street on the crosswalk near the east end of the barricade, the first when she stepped off the curb onto some debris, and the second when she slipped on some grease in the middle of the street.

Our question is whether these injuries are within the coverage of the workmen's compensation law. Tex.Rev.Civ.Stat.Ann., art. 8309, § 1 (Vernon's 1967) defines 'injury sustained in the course of employment' to include '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.' Under this definition, an injury received while going to or returning from the place of employment is not, as a general rule, an injury sustained in the course of employment because such an injury is usually a consequence of risks and hazards to which all members of the traveling public are subject rather than risks having to do with and originating in the work or business of the employer. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.1963). This 'going-and-coming rule' is subject to several exceptions for cases in which the risk is considered to have originated in the work or business of the employer. One of these exceptions is the case of an injury sustained at a place intended by the employer as a means of access to the place of employment and so closely related to the employer's premises as to be fairly treated as a part of the premises. Lumbermen's Reciprocal Ass'n v. Behnken,112 Tex. 103, 246 S.W. 72 (1922); Kelty v. Travelers Ins. Co., 391 S.W.2d 558 (Tex .Civ.App.--Dallas 1965, writ ref'd n.r.e.).

Although we have found no decision holding an injury sustained in a public street on the way to or from work to be within the access exception, in Kelty v. Travelers Ins. Co., Supra, an injury on a public sidewalk adjacent to the employer's building was held to be within this exception, since the employer had assumed responsibility for the sidewalk so as to make it in effect a part of its premises. In other cases falls on public sidewalks on the way to or from work have been held covered by workmen's compensation laws. Heacker v. Southwestern Bell Telephone Co., 270 F.2d 505 (5th Cir. 1959); Barnett v. Britling Cafeteria Co., 225 Ala . 462, 143 So. 813 (1932); Hammond v. Great Atlantic & Pacific Tea Co., 56 N.J. 7, 264 A.2d 204 (1970). The access exception has also been held to cover injuries on adjacent railroad rights of way customarily used by employees going to and from work. Texas Employers Ins. Ass'n v. Anderson, 125 S.W.2d 674 (Tex.Civ.App.--Dallas 1939, writ ref'd); Hunt v. Allis-Chalmers Mfg. Co., 445 S.W.2d 400 (Mo.App.1969).

Defendant argues that the access exception to the going-and-coming rule applies only where the way traveled by the employee is (1) the only way to and from work, and (2) not traveled by the public generally. In support of this argument defendant cites Viney v. Casualty Reciprocal Exchange, 82 S.W.2d 1088 (Tex.Civ.App.--Eastland 1935, writ ref'd) and Texas Employers' Ins. Ass'n v. Clauder, 431 S.W.2d 579 (Tex.Civ.App.--Tyler 1968, writ ref'd n.r.e.). These decisions cannot properly be interpreted as controlling authority for restricting the access exception so narrowly. Viney involved an injury to an employee who was crossing a neighbor's pasture on horseback at some unspecified distance from the gin where he worked. In applying the going-and-coming rule, the Eastland Court of Civil Appeals recognized, but held inapplicable, certain exceptions, including a case 'where the way traveled must necessarily be traveled as the only way to and from work, and is not traveled by the public generally.' The court's recognition of that kind of case as falling within an exception to the going-and-coming rule is not equivalent to a holding that the access exception must be limited to that situation. Clauder is similarly inconclusive on this point. It involved an injury on a public road half a mile from the employer's premises. The Tyler Court of Civil Appeals explained in cautious and noncategorical language why the access exception did not apply, saying that it was 'generally held' that in order to authorize recovery under the access doctrine it was 'ordinarily essential' that the way traveled be the only way and that it should not be traveled by the public generally. In neither case was the place of the injury in as close proximity to the employer's premises as in the present case.

The access exception stated in Behnken and Kelty is apparently broader than that recognized in Viney and Clauder. Its requirements are: (1) the employer must evidence an intention that the access area, though not a part of his premises, be used by employees as a way to and from work, and (2) the area must be so closely related to the employer's premises as to be fairly treated as a part of the premises. The requirement of intention is met if only one access way is available, since in that case the employer must necessarily have intended the employees to use that way, but it may also be met in some other manner. The employer may have intended more than one way of access for its employees and may have evidenced that intention by posting signs, as in this case. Thus we have no difficulty in determining from this record that the employer intended that employees approaching its building from the east along the south side of Bryan Street should cross over Bryan Street and back again on their way to work. Their freedom to approach from a different direction or to park on the north side of the street...

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2 cases
  • Ross v. Texas One Partnership
    • United States
    • Texas Court of Appeals
    • July 6, 1990
    ...liable for the contractor's activities that are reasonably contemplated by the contract. He cites Texas Compensation Insurance Co. v. Matthews, 504 S.W.2d 545, 549 (Tex.Civ.App.--Dallas 1973), rev'd, 519 S.W.2d 630 (Tex.1974), for this proposition. We note initially that Ross failed to info......
  • Texas Compensation Ins. Co. v. Matthews
    • United States
    • Texas Supreme Court
    • September 24, 1974
    ...agreed statement of facts. Judgment was for the plaintiff. The Court of Civil Appeals sitting in Dallas affirmed, one justice dissenting. 504 S.W.2d 545. We agree with the views of the dissenting justice; and accordingly we The facts of the case are fully and fairly set out in the opinion o......

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