Texas Employers' Ins. Ass'n v. Anderson

Decision Date14 January 1939
Docket NumberNo. 12539.,12539.
Citation125 S.W.2d 674
PartiesTEXAS EMPLOYERS' INS. ASS'N v. ANDERSON et al.
CourtTexas Court of Appeals

Appeal from District Court, Van Zandt County; G. O. Crisp, Judge.

Suit by Texas Employers' Insurance Association against Mrs. May Anderson and others to set aside a final award of the Industrial Accident Board in favor of defendants on account of the death of employee alleged to have resulted from accidental injuries received in the course of his employment with Morton Salt Company, wherein defendants filed a cross-action for the benefits authorized by the Workmen's Compensation Law. From a judgment for defendants, plaintiff appeals.

Affirmed.

Ramey, Calhoun & Marsh and Joe W. Sheehy, all of Tyler, and Wynne & Wynne, of Wills Point, for appellant.

West & Stanford, of Canton, and Nat M. Crawford, of Grand Saline, for appellees.

LOONEY, Justice.

Appellant, Texas Employers' Insurance Association (the insurance carrier), instituted this suit against Mrs. May Anderson (widow), Charles Anderson, and Mildred Anderson (children), statutory beneficiaries of C. C. Anderson, deceased, to set aside a final award of the Industrial Accident Board in their favor, on account of the death of the husband and father, alleged to have resulted from accidental injuries received in the course of his employment with Morton Salt Company, of Grand Saline, Texas.

Appellees, defendants below, answered the suit and in a cross action, sought to recover the benefits in their favor, as authorized by the Workmen's Compensation Law (Vernon's Ann.Civ.St. art. 8306 et seq.). Issue was joined on the allegations of the cross action, but by an agreement all controverted issues were effectually eliminated, except the question, whether, within the meaning of the Workmen's Compensation Law, C. C. Anderson was fatally injured in the course of his employment. That issue having been answered by the jury in the affirmative, and as we think with ample evidence to sustain the finding, the court rendered judgment in favor of appellees, to which appellant excepted, gave notice of and perfected this appeal.

In view of the situation produced by the agreement, the discussion will be restricted alone, to the question, which, as stated by appellant in its brief (at pages 14, 15), is "whether or not C. C. Anderson was in the course of his employment with Morton Salt Company within the purview and meaning of the Workmen's Compensation Act of the State of Texas at the time he received the injuries resulting in his death".

The material facts bearing upon that issue are these: The Texas & Pacific Railroad, consisting of a main line and several sidings, extends east and west through the premises of Morton Salt Company in the town of Grand Saline; the lands owned and controlled by the Salt Company adjoin the right of way of the railroad both on the north and on the south; on the north, the Company's buildings are located, consisting of a large main building, machine shop, cooker shop, boiler and granary room, office, etc. The granary room, in which the deceased worked, was located about 130 feet north of the main line of the railroad; from the granary a footpath extended south to the north line of the right of way of the railroad. On the south side of the right of way, across from the Company's buildings, a number of oil tanks and warehouses, owned by oil companies, were located. The Salt Company controlled and used several acres of land adjoining the right of way of the railroad on the south side, across from the Company's buildings just mentioned, upon which it maintained several brine wells, a derrick, a brine tank about 100 × 150 feet in size, a sewer, connected with the plant to carry off waste water, a pump house and an area called "waste land", on which waste brine from the brine pool was run. There also existed a trail or footpath through this acreage, winding in a northerly direction, crossing a ravine that was bridged, leading to a point on the railroad right of way south of the granary room and in line with the footpath leading south from the granary room to the right of way before mentioned.

The deceased had been an employe of the Salt Company for over twenty years and, during that entire time, in going to and from his work, had customarily walked the footpath on both sides of the railroad and crossed over the right of way at substantially the same place where he was injured. He resided about a quarter of a mile south, a little west of the building in which he worked; occupied a tenant house belonging to J. S. Land, master mechanic of the Salt Company, and deceased's foreman, and in the same vicinity a number of other employes of the Salt Company resided, some of whom occupied Company owned houses, all of whom, in like manner, customarily traveled the footpath and crossed over the railroad tracks in going to and from their work at the Company's plant. The pathway was used exclusively by pedestrians, but, being unfenced, was occasionally used by persons other than Company employes.

Deceased was an operator in the granary room, worked on a night shift, customarily relieving his predecessor between 3 and 4 o'clock in the afternoon and was in turn relieved by a successor, between 11 and 12 o'clock at night. On the night of the fatal accident, being relieved about 11:30, deceased checked out and was seen leaving the granary room, on the footpath going south in the direction of his home, and within about ten or fifteen minutes was found by persons attracted by his outcry, on his hands and knees in the path between the granary room and the main line of the railroad. In answer to an inquiry, stated that he had attempted to crawl under a freight car, was caught and his legs cut off. Blood and particles of flesh and bone were found on the south rail of the main line track, and at that point, deceased's dinner-pail, walking stick, and flashlight were also found, indicating clearly that, in crawling under the car, he had reached the south rail when the train, of which the car was a part, was put in motion resulting in the accident. The fact that deceased was found north of the tracks clearly indicates that, after being wounded, he crawled back over the main line and sidings and onto the pathway leading to the granary room, calling for help. His death occurred about ten days later.

There are two other routes that deceased and other employes residing in that vicinity could have traveled to and from the Salt Company's plant, however, these were circuitous, out of the way, also crossed the railroad tracks, and about twice the distance of the pathway, the latter being the shortest, safest, most direct and practicable route from the residence of the deceased to the granary where he worked. Its use as a means of ingress to and exit from his place of work not only conduced to his safety and convenience, but contributed to the promptness and efficiency with which he was enabled to discharge the duties owing his employer; hence the reason and necessity for his presence upon the railroad track (that portion of the pathway leading over the railroad right of way) when injured, in our opinion, had to do with, originated in and grew out of the work of the employer; and that, the injury received at the time, place, and under the circumstances, necessarily was in furtherance of the affairs or business of the employer. Evidently, this was realized by the Salt Company, or else the pathway through its premises, which, as disclosed by the record, had been in existence and used daily by the deceased and other employes for over twenty years, would not have been permitted to remain open and subject to such a continuous use.

While it was not a prerequisite to recovery by appellees that the injury to deceased should have been sustained on the premises of the employer, yet, in view of the undisputed facts and circumstances, we think it should be so regarded. The Salt Company controlled the land adjacent to the right of way of the railroad on both sides, and its employes, in using the pathway through the premises, in going to and from their work, customarily and necessarily passed over the right of way and tracks of the railroad, without objection by the railroad company, so far as disclosed by the record; hence, we think it may reasonably be assumed that such use was with its permission, and that for the purposes of this case, it may correctly be said that the deceased was injured at a place intended for use as a means of ingress and egress to and from his place of work, and that his departure was so recent and closely connected with the employment as to render it an incident thereto. Neither was it necessary, in our opinion, that the accident should have occurred during the hours of actual service; nor that deceased should have been discharging some specific duty required by his employment at the time of the injury.

These views are fully sustained by the authorities, to the effect, that, as a general rule accidents which happen to an employe on his way to and from work are not regarded as in the course of his employment, except while he is at or so near the place of employment as reasonably to be regarded as in effect at the place; or where, if not on the employer's premises, he is at or near the place of work and on a road or other way intended by the contract of employment as being the means of access to the work. In Petroleum Casualty Co. v. Green, Tex.Civ.App., 11 S.W.2d 388, 390, writ refused, Judge Gallagher, speaking for the Waco Court, in a well considered compensation case, announced the doctrine, that "It was not necessary that the injury complained of by appellee should have been sustained during the hours of actual service which he was required by the terms of his employment to render to said company. The course of his employment was not limited to the exact moment when he reported for duty at the...

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