Texas Employers Ins. Ass'n v. Andrews

• Decision Date: 01 December 1937
• Docket Number: No. 1712-6979.,1712-6979.
• Citation: 110 S.W.2d 49
• Parties: TEXAS EMPLOYERS INS. ASS'N v. ANDREWS et al.
• Court: Texas Supreme Court

110 S.W.2d 49

TEXAS EMPLOYERS INS. ASS'N v. ANDREWS et al.

No. 1712-6979.

Commission of Appeals of Texas, Section B.

December 1, 1937.

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

Suit under Workmen's Compensation Act by the Texas Employers Insurance Association to set aside an award of the Industrial Accident Board in favor of Mrs. F. T. Andrews for the death of her daughter. Judgment denying relief was affirmed by the Court of Civil Appeals (83 S.W.2d 1059), and plaintiff brings error.

Affirmed.

Lawther, Cox & Cramer, Wm. M. Cramer, and Shelby S. Cox, all of Dallas, and Ramey, Calhoun & Marsh, of Tyler, and Ben A. Harper, of Olney, Ill., for plaintiff in error.

Storey, Sanders & Sherrill, of Dallas, for defendants in error.

MARTIN, Commissioner.

Judgment was entered by the trial court for the claimant in a Texas Workmen's Compensation case and affirmed by the Court of Civil Appeals. See 83 S.W.2d 1059.

The following brief excerpt from the opinion of the latter court will show the controlling facts:

"On the 9th of May, 1934, Miss Andrews was a regular employee of the Wadel-Connally Hardware Company in Tyler, Texas, and had been so employed for more than a year next preceding her death. On the date of her death and at the time of injuries causing same, she was engaged, on a regular working day, and in regular working hours, in her work as a stenographer for said Company on its premises in Tyler, and at such time was regularly engaged in such work in the office of the Company, provided for her in connection with her work as stenographer.

"Miss Andrews and W. A. Pope on said date were instantly killed as a result of the explosion of a boiler located in the cleaning and pressing establishment of C. N. Jones. The boiler had been installed in the Jones plant about April 4, 1931, and was situated near the west wall of the Jones plant. The Wadel-Connally building was situated immediately west of the Jones plant and across a twelve foot alley."

The main law question at issue here is sufficiently stated we believe in plaintiff in error's fifth proposition, as follows: "An injury to a hardware company stenographer from the explosion of a steam boiler owned and operated by a cleaning and pressing plant and situated in a nearby building did not result from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of the hardware business."

The applicable portion of article 8309, 2d subd. 4, R.S., provides: Injury sustained in the course of employment, "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."

This language is rather general, purposely so we take it, because it would be most difficult and perhaps not desirable to attempt to include within the specific terms of a rule every conceivable case of compensable injury, and to exclude every one not compensable. We shall not here undertake such a task, but will content ourselves with what we conceive to be a proper discussion and disposition of the present case upon its particular facts in the light of the above statute rather than in terms of a general rule, or expression taken from some particular case, which in detachment from its proper background might, on its face, support or defeat a recovery herein.

The clause "having to do with and originating in the work," quoted, supra, as part of article 8309, manifestly does not mean, as applied to this case, that the cause of the injury must have come from or originated in the work or business of the hardware company. That the force which causes a compensable injury may be external to and apart from the work or business of the employer is recognized in a multitude of cases.

"It is enough if the employee in the performance of his duties has been subjected to the particular risk which caused his injury by the conditions of his employment." A causal relation between the employment and the injury must be shown. Liability is based primarily upon the relationship of employer and employee, tested by the terms of the Workmen's Compensation Law (Vernon's Ann.Civ.St. art. 8306 et seq.). Here an employee was required to work in proximity to a steam boiler. We need not decide that such boiler was an "inherently dangerous instrumentality," as did the Court of Civil Appeals. We do decide that it constituted a visible, foreseeable risk. If the employee here had been sent as a bill collector across the twelve-foot alley to the Jones building on her employer's business and there killed by the explosion, could there be any doubt of liability? Instead, she was performing her duties within a few feet of this same hazard, but with a brick wall separating her from it. From a legal standpoint we fail to see any controlling distinction between liability in the two cases. The risk, as is argued, was not one shared by the employee with the general public, but only with such of them as happened to be in that immediate vicinity. True, it was not a risk to which the employees of every hardware business was subjected, nor did the employer have any control over the operation of the boiler, but neither of these control the question before us. We are able to trace here the injury to a foreseeable danger to which the employee was subjected by the conditions of her employment and which was the contributing, if not the actual, cause thereof.

In most jurisdictions the requirement of the statute is that the injury "arise out of and in the course of employment," a phrase not essentially different in effect from that occurring in the Texas statute, quoted supra.

Of this phrase it has been said: "It has been well said that it is not easy to give a comprehensive definition of the words `arising out of the employment,' which shall actually include all cases within the act, and with precision exclude those without its terms; yet a lucid definition that has received wide favor is that an injury arises out of the employment when there is apparent to the rational mind, upon consideration of all of the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury; * * *. Causal relation is said to be established when the accident is shown to have arisen out of a risk which a reasonable person might have comprehended as incidental to the employment at the time of entering into it, or when the...