Travelers Insurance Company v. Hampton, 4152

• Decision Date: 21 April 1967
• Docket Number: No. 4152,4152
• Citation: 414 S.W.2d 712
• Parties: The TRAVELERS INSURANCE COMPANY, Appellant, v. M. A. HAMPTON, Appellee. . Eastland
• Court: Texas Court of Appeals

Page 712

414 S.W.2d 712

The TRAVELERS INSURANCE COMPANY, Appellant, v. M. A. HAMPTON, Appellee.

No. 4152.

Court of Civil Appeals of Texas Eastland.

April 21, 1967.

Rehearing Denied May 5, 1967.

Kerr, Fitz-Gerald & Kerr, Theodore M. Kerr, Midland, for appellant.

Warren Burnett, Robert E. Hoblit, Odessa, for appellee.

GRISSOM, Chief Justice.

In a trial to the court, M. A. Hampton, the father of Tony Hampton, deceased, recovered a judgment against his employer's insurance carrier and it has appealed.

On March 16, 1966, at 10:00 o'clock P.M. Tony Hampton and Wayne Patterson, employees of Pinkie's Inc., were coming out of the back door of Pinkie's store when they were shot and killed by William T. Patterson. Wayne Patterson, Tony's fellow employee, was a cousin of William. The killing arose out of a grievance William had against his cousin Wayne for about five years because Wayne had then struck William with a stick. A doctor testified that, in her opinion, William went to Pinkie's on that fatal night to kill Wayne and the appearance of Tony constituted a detriment to accomplishment of his purpose to kill Wayne which he intended to remove by use of his rifle; that after William had fired two shots each into the bodies of Wayne Patterson and Tony Hampton he pinned his fishing license on their bodies so the officers would arrest him. At the time of the shooting both Wayne and Tony were walking out of the rear door of Pinkie's store, closing it for the night. Tony's duties were to assist Wayne in closing the store at about 10:00 o'clock and in locking the back door and to then mail a written report of the day's business to his employer. When he was killed Tony had the daily report of business in his hand, he was leaving his employer's store through the rear door, out of which said employees were supposed to leave and lock said door, and to then mail said report. The killer did not know Tony. Tony stepped out the door first and was immediately killed by William. A qualified doctor testified that the killer had been suffering from catatonia schizophrenia for five or six years and was mentally ill; that his mental illness was severe enough to impair his contact with reality and he was insane at the time of the killing. There was testimony that William had a difference with Wayne that did not involve Tony and that if anyone else had gone out the back door at the time Tony did they would have been shot. The court found that (1) Tony was an employee of Pinkie's Inc. at the time he was killed; that (4) Tony's accidental injury was received in the course of his employment by Pinkie's Inc. and that (5) said injury was a producing cause of Tony's death. The court further found that when William killed Tony, William was insane and incapable of entertaining a rational intention and incapable of reasoning.

The finding that Tony was then in the course of his employment is the principal act urged by the insurance company as reversible error . The insurance company's first two points are that the court erred in rendering judgment for Hampton because (1) there was no evidence that Tony's injury was received in the course of his employment by Pinkie's Inc., and (2) the evidence was insufficient to support that finding.

In Southern Surety Company v. Shook, Tex.Civ.App., 44 S.W.2d 425, 426, (writ ref.), Thompson and others went upon a lease where Shook was employed to keep a pump running. Shook was permitted to go anywhere while he was on the job provided he could hear the pump running at that distance. Thompson and others went on the lease for the purpose of murdering and robbing Shook. They lured him away from his cabin on a pretended hunting expedition and, while he was still near enough that he could hear the pump, they shot and killed him. Shook's heirs recovered a judgment under the Workmen's Compensation Law and the insurance carrier appealed. It contended that the court erred in finding that Shook's injury had to do with and originated in his employer's business and that Shook was not killed because of reasons personal to him and not directed against him as an employee or because of his employment within the meaning of Article 8309, Sec. 1. A jury found that Shook was injured in the course of his employment. The insurance company requested a peremptory instruction that said injury was not received in the course of Shook's employment within the meaning of said statute. Judge Hickman, in writing the opinion for this court, pointed out that there was no malice on the part of the killer toward the employee, that, on the contrary, his motive was robbery, possibly commingled with the desire of a depraved mind to 'see him kick' and that there had been no previous difficulty. This court concluded that the employee's death was not brought about by 'reasons personal to him', citing Vivier v. Lumbermen's Indemnity Exchange, Tex.Com.App., 250 S.W. 417, 418. The insurance company contended that the evidence showed that Shook's injury did not have to do with and originate in the work of his employer, and was not received by the employee while he was engaged in or about the affairs or business of his employer. It was held that Shook's injury resulted from a risk or hazard incident to his work as a pumper for the reasons mentioned, plus the further facts that Shook was on duty twenty-four hours a day and was housed in a shack belonging to his employer near the pump in order that he might always be available. In so holding this court quoted from our Supreme Court's opinion in Lumberman's Reciprocal Ass'n. v. Behnken, 112 Tex. 103, 246 S.W. 72, 73, 28 A.L.R. 1402 the following:

'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. As tersely put by the Supreme Court of Iowa:

'What the law intends is to protect the employee against the risk or hazard taken in order to perform the master's task.'--Pace v. Appanoose County, 184 Iowa, 498, 168 N.W. (916,) 918'.

Appellant seeks to show that Tony was not in the course of his employment by saying that his injury and death was not of the kind and character that had to do with and originated in the employer's business. There was evidence that Pinkie's Inc. needed two employees to carry out its business of operating a liquor store; that Tony did not choose to work with Wayne but they were required to work together to carry out their employer's business and Wayne's cousin Willie came to Pinkie's store that night for the purpose of killing Wayne; that Tony had nothing to do with William's intention or desire to kill his cousin Wayne. Tony's only contact with the killer was caused directly and solely by his employment, which required him to work with Wayne on March 16, 1966 and, thus, placed him in the danger zone where only an employee of Pinkie's had to be. The killer stated that he had his rifle aimed at the back door and the boy he did not know walked out the back door first and he shot him but that he was there for the purpose of killing Wayne. The evidence sustains the finding that Tony was in the course of his employment by Pinkie's when he met his death. He was assisting in closing and locking the back door, which he had gone through, it being the door he was required to leave by in order to see that it was closed and locked and he had his daily report in his hand to be mailed by him to his employer. These facts are undisputed. They are sufficient to support the finding that Tony was in the course of his employment.

In Katz v. A. Kadans & Co., 232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401, a dairyman's chauffeur was stabbed by an insane man after he had delivered cheese for his employer. The court awarded compensation saying:

'If the work itself involves exposure to perils of the street, strange, unanticipated, and infrequent though they may be, the employee passes along the streets when on his master's occasions under the protection of the statute. This is the rule unequivocally laid down by the House of Lords in England.'

Tony, in discharging his duties, was working with an employee who had an insane cousin who wanted to kill him and Tony was exposed to that danger because of his employment. In Vivier v. Lumberman's Indemnity Exchange, Tex.Com.App., 250 S.W. 417, 418, the court said:

'By reason of the performance of his duty, deceased was placed in a position which contributed to the effectuation of the designs of the assassin, and furnished the opportunity for injury or death that would not have existed but by reason of his situation in the performance of his duty.'

It was there held that where a night watchman, while on his employer's premises performing his duties, was assaulted and killed by an unknown person whose motive was robbery, his death was caused by an injury suffered in the course of his employment. In Hartfore Accident & Indemnity Co. v. Hoage, 66 App.D.C. 160, 85 F.2d 417, the Court of Appeals for the District of Columbia held that when a crazed stranger stabbed a chef while he was cooking in a restaurant kitchen which served as a passageway for its customers that his injury arose out of and in the course of his...