U.S. Fire Ins. Co. v. Alvarez

• Decision Date: 29 July 1983
• Docket Number: No. 16887,16887
• Parties: UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Rosa S. ALVAREZ and Manuel Alvarez, Appellee.
• Court: Texas Court of Appeals

Page 463

657 S.W.2d 463

UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Rosa S. ALVAREZ and Manuel Alvarez, Appellee.

No. 16887.

Court of Appeals of Texas,

San Antonio.

July 29, 1983.

Rehearing Denied Sept. 14, 1983.

Sawtelle, Goode, Davidson & Troilo, Jess M. Irwin, III, John A. Heller, John W. Davidson, San Antonio, for appellant.

Richard Tinsman, Stephen F. Lazor, San Antonio, for appellee.

Before CADENA, C.J., and BUTTS and DIAL, JJ.

OPINION

BUTTS, Justice.

This is a worker's compensation ¹ case. On August 9, 1978, Tranquilino Alvarez, a migrant farm worker from Laredo, arrived in Dell City to work at a 14,000 acre farm owned and operated by C.L. Machinery Company, Inc. (C.L.M. Farms). Alvarez, sixty-one years of age, earned $2.65 an hour, his principal jobs being to keep the packing machines in the packing shed operational and to ice down the boxed cantaloupes after they were loaded onto the trucks during cantaloupe season.

An ice machine crushed three hundred pound blocks of ice while Alvarez grasped the two metal handles at the end of the hose and directed the spray of ice. Each truck required eight to twelve three hundred pound blocks of ice, each taking twenty to thirty minutes to ice down. Cantaloupe season extended from August 14th to September 3rd, 1978, from 8:00 a.m. to 10:00 p.m., seven days a week.

Eight to ten days after harvesting of the cantaloupes, Alvarez complained to his supervisor of not feeling well, not specifying what was wrong. On September 15 Alvarez visited Dr. Oscar Lozano in Dell City complaining of fever and numbness in his left index finger. On September 18 Alvarez visited Dr. Billy C. Lipsey in Van Horn complaining of pain in his right hand and arm and shortness of breath. Doctor Lipsey observed an inflammation or infection of one finger of the right hand that appeared to be the result of a wound or cut.

Taking medication but still not feeling well, Alvarez returned to Laredo on September 24. His wife noticed he was in a great deal of pain and that three fingers of both hands were purple. An ambulance transported him to Doctor's Hospital where he was examined and admitted. The admitting physician, Dr. Thuy Danh Do, diagnosed all of Alvarez's fingers as gangrenous from the tips to the middle knuckle joints, making a temporary diagnosis that injury was the result of frostbite. The treating physician, Dr. Miguel Eugenio Najera, concurred with Dr. Do's diagnosis.

On October 1st, Alvarez was transferred to the hospital's intensive care unit with his lungs congested to the point that a tracheotomy was performed and a respirator employed. One week later Alvarez suffered a stroke; his condition worsened; on October 13, 1978, he died. The autopsy report and the death certificate listed three causes of death: extensive pneumonia of both lungs, left cerebrovascular accident, and frostbite and necrosis of fingertips.

Alvarez's widow, Rosa S. Alvarez, for herself and all his beneficiaries filed a claim for worker's compensation. Following a formal hearing, the Board (Texas Industrial Accident Board) awarded Alvarez's widow and his minor son Manuel weekly compensation payments, reimbursement for medical expenses, and funeral costs.

The widow and son filed suit in Webb County to set aside the ruling of the Board. Tex.Rev.Civ.Stat.Ann. art. 8307a (Vernon Supp.1982-1983). Appellant filed its plea of privilege, asserting proper venue to be in Dallas County. The trial court overruled the plea of privilege. This court in United States Fire Insurance Co. v. Alvarez, 608 S.W.2d 264 (Tex.Civ.App.--San Antonio 1980, writ dism'd), affirmed that decision.

After trial the jury responded favorably for appellees, and judgment was entered accordingly. United States Fire Insurance Company appeals, alleging thirty-eight points of error. Appellant's initial points of error relate to special issue number one of the jury charge,

Do you find from a preponderance of the evidence that in August and September of 1978, Tranquilino Alvarez was not a "farm laborer" in connection with the duties he was hired to perform by C.L. Machinery Company, Inc.?

Farm laborer is one who works in the employ of the operator of a farm and is engaged in the planting, cultivating and/or harvesting of agricultural or horticultural crops in their unmanufactured state.

The jury responded, "He was not a farm laborer." The charge was given because "farm laborers" are excluded from coverage under the Workers' Compensation Act (the Act). Tex.Rev.Civ.Stat.Ann. art. 8306, § 2 (Vernon Supp.1982-1983).

What a "farm laborer" is, within the meaning of the Act, is a question of law; whether one meets the definition is a question of fact. If the facts are undisputed, then the question becomes one purely of law. Georgia Casualty Co. v. Hill, 30 S.W.2d 1055, 1056 (Tex.Civ.App.--Eastland 1930), aff'd, 45 S.W.2d 566 (Tex.Comm'n App.1932, judgmt. adopted).

The definition of "farm laborer" as given herein was approved in Texas Employers' Insurance Association v. Derrick, 207 S.W.2d 199, 202-03 (Tex.Civ.App.--Amarillo 1947, writ ref'd n.r.e.). The term should be given its broad and general meaning. Millers Mutual Fire Insurance Co. of Texas v. Rawls, 500 S.W.2d 545, 546 (Tex.Civ.App.--Beaumont 1973, writ ref'd n.r.e.).

That Alvarez's injury occurred from spraying ice on cantaloupes just prior to shipping is undisputed. Therefore, whether he was a farm laborer is a question of law. The actual work Alvarez performed and its relation to the overall operation is determinative. More specifically, the work he was performing at the time of injury controls and his other duties are immaterial as long as he was performing in an enterprise covered by the Act. Hardware Dealers' Mutual Fire Insurance Co. v. King, 426 S.W.2d 215, 217-18 (Tex.1968).

Is the preparing and packaging of produce for shipment by independent contractors the work of a farm laborer? Appellant presents two arguments. The first is that one who works on a farm is a farm laborer. The second is that if the item the employee is working with is a farm product, such as cantaloupes, then the employee is a farm laborer.

Although we find no Texas cases directly on point, the cases that do exist offer some guidance. In Millers Mutual Fire Insurance Co., supra, the court found the gathering of chickens for shipment to broilerhouses not to be farm labor. Although agriculturally oriented, the work was "commercial." Likewise, in Texas Employers' Insurance Association, supra, the feeding of customer owned cattle by a mill employee at feeding pens operated by the mill, but located on a farm one mile north of the mill, did not alter employment from commercial to agricultural.

Decisions from other jurisdictions, more on point, offer more illumination. The Louisiana courts distinguished between a sugar cane cutter and a worker who stacks cut and stripped cane for delivery to the factory, declaring the latter is not an agricultural laborer. Compare Griffin v. Catherine Sugar Company, 42 So.2d 913 (La.App.1949), rev'd on other grounds, 219 La. 846, 54 So.2d 121 (1951) with Robichaux v. Realty Operators, 195 La. 70, 196 So. 23 (1940). In a case strikingly similar to the one at bar, a Florida court decreed employees who worked in packing sheds were not "agricultural farm laborers" and thus were covered by workers' compensation. Dobbins v. S.A.F. Farms, 137 So.2d 838 (Fla.App.1962).

It is regrettable that the Legislature has established a class of people to be excluded from compensation under the Act without offering guidelines for determining those that are members of the class. Although we are told to give the term its general meaning, the court still must distinguish between different types of "agriculturally oriented" labor. The obvious purpose of the exclusion is to deny coverage to those whose employment is not considered hazardous. See Gordon v. Buster, 113 Tex. 382, 257 S.W. 220, 221 (1923). In the modern farming market, however, machinery that is often used can no longer be considered non-hazardous. Further, as has frequently been noted, the modern farm is no longer a sole farmer with five to ten employees. Rather, many farms are just one cog in a giant structure that involves every process necessary to bring the goods to the supermarket. Some farming businesses even own the stores. Where is the line to be drawn? Does it matter that a sole farmer owns the packing shed rather than a canning company? Is there a difference between one who separates the produce from the soil and the employee who unloads the truck at the packing shed? A treatise on the subject (1C.A. LARSON, THE LAW OF WORKMEN'S COMPENSATION), states,

In all these cases it should be remembered, however, that the decisive question is the nature, not of the employer's business, but of the employee's employment. If the employee's work is agricultural in nature, it is no less so because the employer happens to be a factory or chemical company unless, as these cases indicate, it is held that in the circumstances an operation on the farm is really the first stage of industrial processing.

Id. at § 53.31, p. 9-152 to 153 (1982). Appellant argues the definitions of "agricultural laborer" found in the Unemployment Compensation Act, Tex.Rev.Civ.Stat.Ann. art. 5221b-17(g)(5)(B) (Vernon Supp.1982-1983) and "agriculture" found in the Texas Minimum Wage Act of 1970, Tex.Rev.Civ.Stat.Ann. art. 5159d, § 3(f) (Vernon 1971) indicate legislative intent to include those that package for shipment within "farm laborer." We disagree. Although the terms defined are similar, the three Acts were passed at different times; the first version of the Workers' Compensation Act excluding farm laborers passed in 1913. Workmen's Compensation Act, ch. 179, 1913 Tex.Gen.Laws 429. The definitions the Legislature chose to give in 1969 and 1970 to the terms "agriculture" and "agricultural labor" in no way indicate the same definitions were intended to...