United Employers Casualty Co. v. Barker

• Decision Date: 22 January 1941
• Docket Number: No. 10833.,10833.
• Citation: 148 S.W.2d 260
• Parties: UNITED EMPLOYERS CASUALTY CO. v. BARKER et al.
• Court: Texas Court of Appeals

148 S.W.2d 260

UNITED EMPLOYERS CASUALTY CO. v. BARKER et al.

No. 10833.

Court of Civil Appeals of Texas. San Antonio.

January 22, 1941.

Rehearing Granted in Part February 19, 1941.

Appeal from District Court, Bee County; W. G. Gayle, Judge.

Suit under the Workmen's Compensation Act by Mrs. G. H. Barker and others to set aside an award of the Industrial Accident Board in favor of the United Employers Casualty Company, insurance carrier. From a judgment for plaintiffs, defendant appeals.

Judgment reformed and affirmed.

Kemp, Lewright, Dyer, Wilson & Sorrell and J. Woodrow Hazlewood, all of Corpus Christi, for appellant.

R. S. Crawford, of Crystal City and O. Kennedy, of Beeville, for appellees

NORVELL, Justice.

This is a workmen's compensation case arising out of the following facts:

On October 11, 1938, a group of about eight trucks, loaded with oil field equipment, owned or controlled by J. I. Hailey, and under the supervision of Roscoe Hailey, arrived in Beeville, Texas. One of the trucks was driven onto a vacant lot, and the others stopped in the street close by. Roscoe Hailey then went to see about parking these trucks upon the vacant lot, leaving the drivers under his supervision with the trucks awaiting orders. All the truck drivers, with the exception of Wick Burns, got under the trucks in order to get in the shade, as it was about 3 o'clock in the afternoon and the sun was shining brightly. Wick Burns remained in the cab of his truck which had been driven onto the vacant lot and went to sleep. After being absent some thirty or forty minutes, Roscoe Hailey returned and gave a signal to his truck drivers to start up. Wick Burns woke up, started his truck and ran over and killed James Delbert (Mike) Hall, another truck driver who had gone to sleep, lying between the trailer and truck which Burns was driving.

The controlling question involved is whether or not Hall's death, under the circumstances above detailed, is compensable under the Texas Workmen's Compensation Law, Article 8306 et seq., Vernon's Tex. Ann.Civ.St.

The jury found that Hall, in the course of his employment with J. I. Hailey, sustained injuries which resulted in his death. The term "injuries sustained in the course of his employment" was defined in the words of the statute as meaning injuries "having to do with and originating in the work, business, trade or profession of the employer received by an employé while engaged in or about the furtherance of the affairs or business of his employer." Sec. 1, second subd. 4, Art. 8309.

The trial court refused to submit the following requested special issue: "Do you find from a preponderance of the evidence that in going to sleep upon the ground where he did, under the truck, James Delbert Hall did not thereby choose an unnecessarily dangerous place to do so, thereby increasing the risk of injury to himself beyond that reasonably contemplated by his contract of employment with J. I. Hailey?"

Based upon the finding above mentioned, together with a finding as to Hall's average weekly wage, and one relating to a lumpsum award, the trial court entered judgment in favor of Mrs. G. H. Barker, the mother of deceased, for $3,234.13. The insurance carrier, United Employers Casualty Company, has appealed.

The rule in this State is that "an injury may be said to arise out of the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury." Sharp, J., in Federal Surety Co. v. Ragle, Tex.Com.App., 40 S. W.2d 63, 64, quoting from Corpus Juris treatise on Workmen's Compensation Acts, § 64, pp. 73, 74.

This is the rule or test of In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R. A.1916A, 306, wherein it is also said that the causative danger "must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." See, also, Cherry v. Magnolia Petroleum Company, Tex.Com.App., 45 S.W.2d 555; McClure v. Georgia Casualty Company, Tex. Com.App., 251 S.W. 800; 45 Tex.Jur. 460-464, §§ 73, 74.

These are the rules for the determination of causal relationship which are to be applied by us in determining whether or not the jury verdict has support in the evidence.

Appellant urges what may be called a further refinement of the rule, in accordance with its requested issue above set out. It is contended that this is a case in which the test followed in some jurisdictions should be applied, to wit: Did the accident result from a risk which might have been contemplated by a reasonable person when entering the employment, as incidental to it? Appellant has cited no Texas authority in which the above test has been applied, and we have been unable to find such a case. The authorities cited by appellant indicate that in certain cases, the courts of Illinois and Massachusetts do apply the test or rule contended for by appellant here. See Weis Paper Mill Co. v. Industrial Commission, 293 Ill. 284, 127 N.E. 732; White Star Motor Coach Lines v. Industrial Commission, 336 Ill. 117, 168 N.E. 113; Landon v. Industrial Commission, 341 Ill. 51, 173 N.E. 49; Hurley's Case, 240 Mass. 357, 134 N.E. 252; De Costa's Case, 241 Mass. 303, 135 N.E. 135; Wither's Case, 252 Mass. 415, 147 N.E. 831, 40 A.L.R. 1475; Eifler's Case, 276 Mass. 1, 176 N.E. 529. It seems to us that some of these cases, particularly Eifler's case, apply the rule in such a manner as to exclude a recovery for an injury to which the negligence of the employee contributed. Clearly, under the Texas Statute, an injury caused by the negligence of the employee is compensable so long as the causal connection between the employment and the injury remains. On the whole it seems that the application of the rule contended for by appellant to the facts of this case is more confusing than helpful and the trial court was therefore correct in rejecting appellant's theory and submitting the...