Texas Employers' Insurance Ass'n v. Davidson

• Court: Texas Civil Court of Appeals
• Writing for the Court: BOYD
• Citation: Texas Employers' Insurance Ass'n v. Davidson, 295 S.W.2d 482 (Tex. Ct. App. 1956)
• Decision Date: 26 October 1956
• Docket Number: No. 15761,15761
• Petition History: writ ref'd n.r.e.
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Lula DAVIDSON et vir, Appellees.

Page 482

295 S.W.2d 482

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Lula DAVIDSON et vir, Appellees.

No. 15761.

Court of Civil Appeals of Texas, Fort Worth.

Oct. 26, 1956.

Rehearing Denied Nov. 23, 1956.

Burford, Ryburn, Hincks & Ford, Logan Ford and Clarence A. Guittard, Dallas, for appellant.

R. B. Gambill, Denton, Yarborough, Yarborough & Johnson and W. E. Johnson, Dallas, for appellees.

BOYD, Justice.

From a judgment in favor of appellees Lula Davidson and husband, Otis Davidson, for workmen's compensation for Mrs. Davidson for total and permanent disability, payable in a lump sum, appellant Texas Employers' Insurance Association prosecutes this appeal.

The case was tried by the court without a jury. No contention is here made that the evidence did not support the findings that Mrs. Davidson is totally and permanently disabled and that liability should be redeemed in a lump sum. Appellant's only contentions are that the evidence does not support the findings that Mrs. Davidson was injured in the course of her employment and that her average weekly wage was $43.85, as found by the court.

Mrs. Davidson was employed by Russell-Newman Manufacturing Company as a power sewing machine operator. She was paid by the hour. She was not paid for the fifty minutes from 12:00 o'clock noon to 12:50 P.M. That was the lunch period. Some of the employees brought their lunch and ate it on the premises of the employer. Some went to cafes in town and some went home for lunch. Mrs. Davidson sometimes went to a cafe for lunch, and sometimes went home. On the day of the accident giving rise to this suit, she brought her lunch and ate at her machine. This procedure was allowed by her employer. Those who ate lunch in the room where Mrs. Davidson worked were directed to put their waste in a barrel in the room.

On the occasion of her injuries, Mrs. Davidson sat at her machine about five minutes after the 12:00 o'clock whistle blew, arranging some material with which she expected to begin her work at 12:50. She was not required to do this during the lunch period, and was not paid for that time. Then she ate her lunch. This took about ten minutes. After finishing her meal, she arose from her chair and started toward the waste barrel in order to deposit her waste therein. Before reaching the barrel she stepped on a piece of paper which was on the floor, and the paper which was on slip and that caused her to fall. Her fall resulted in the injuries complained of. The piece of paper she stepped on came from the binding of materials which had been brought into the room to be used by the employees in their work.

Appellant contends that since it was conclusively shown that Mrs. Davidson's injuries were sustained during the lunch hour, for which time she drew no pay, she was not engaged in the furtherance of her employer's business, and that therefore the case does not come under the terms of the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. Its argument is that before an injury is compensable it must have occurred while the employee was engaged in or about the furtherance of his employer's business, and that the injury must be of such kind and character as had to do with and originated in the employer's business, that is, that there must be a causal relation between the conditions of the work and the injury; and that these prerequisites are not met by proof that the employee was 'on her own time,' although on the employer's premises and at her place of work when the accident occurred.

Appellant insists that eating her lunch and carrying her waste to the barrel were incidents personal to Mrs. Davidson, and that she was not then engaged in the furtherance of her employer's business. The case of McKin v. Commercial Standard Ins. Co., Tex.Civ.App., 179 S.W.2d 357, is cited by appellant as authority for its position. We do not think that case is controlling here. Mrs. McKim was employed as a hatmaker on the second floor of her employer's establishment. She was paid by the hour. She was not paid for the lunch period. During the lunch period she went downstairs to the selling department of her employer's business. While engaged in the process of buying a hat, she slipped and fell and sustained the injury involved in the suit. The court held that Mrs. McKim had stepped out of her role as an employee and had assumed the role of a customer at the time of her injury. While she was still on the employer's premises, she was not in the manufacturing department where she worked, but in the selling department on another floor. About the only facts in the McKim case similar to those in the case at bar are that Mrs. McKim was paid by the hour, was hurt during the lunch period, and was hurt while on her employer's premises. They are dissimilar in that in our case the employee was at her place of work when she was injured, and her role as an employee had not changed to that of a customer. Mrs. McKim's desire to buy a hat caused her to be in the selling department of her employer's establishment, and not in the department where she worked as a hatmaker.

Appellant cites many cases as upholding its view that Mrs. Davidson did not receive her injuries in the course of her employment; and we have considered them all, but do not think they are decisive of the exact point presented by this record.

(1) Whether an employee was in the course of his employment when he received an injury is ordinarily a question of fact. Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791; Liberty Mut. Ins. Co. v. Nelson, 142 Tex. 370, 178 S.W.2d 514. Each case must be determined upon its own peculiar facts. Texas Employers' Ins. Ass'n v. Anderson, Tex.Civ.App., 125 S.W.2d 674, writ refused.

We have seen no Texas case with such a fact situation as would make the holding controlling here. Appellee cites, among many others, such cases as Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W. 72; Kirby Lumber Co. v. Scurlock, 112 Tex. 115, 246 S.W. 76; General Ins. Corp. v. Wickersham, Tex.Civ.App., 235 S.W.2d 215; Employers Mut. Liability Ins. Co. of Wisconsin v. Konvicka, 5 Cir., 197 F.2d 691; and Indemnity Ins. Co. of North American v. Wright, Tex.Civ.App., 69 S.W.2d 438. All of these cases may be distinguished from ours on the facts; and, therefore, while the decisions of the courts are persuasive, we do not think they are determinative of the question to be decided here.

(2) But after considering all the authorities bearing upon the point from this and other jurisdictions, which have been found by the investigation of counsel and our research, we have reached the conclusion that the evidence supports the finding that Mrs. Davidson's injuries were sustained in the course of her employment, within the meaning of the Workmen's Compensation Act.

(3, 4) The Act must be construed liberally "to properly care for those injured in the industries of this State." McKim v. Commercial Standard Ins. Co., Tex.Civ.App., 179 S.W.2d 357, 359. And it is not a necessary prerequisite to recovery that the injury occur during the hours of actual service, or that the employee be in the discharge of any specific duty incident to his employment. Texas Employers' Ins. Ass'n v. Anderson, supra; Liberty Mut. Ins. Co. v. Nelson, supra. As was said in Texas Employers' Ins. Ass'n v. Anderson, 125 S.W.2d 674, 677 'In administering the Workmen's Compensation Law, doubtless the greatest difficulty is encountered in determining whether, in a particular case, the employe sustained personal injuries in the course of his employment. We are without a formula except the statute, which being phrased in general terms, each case necessarily must be determined on its own peculiar facts, and as a question of fact. ...