McKim v. Commercial Standard Ins. Co.

179 S.W.2d 357, 1944 Tex. App. LEXIS 646

• Court: Court of Appeals of Texas
• Decided: February 25, 1944
• Docket: No. 13478.
• Status: Published

Opinions

YOUNG, Justice.

Appellant’s suit was to set aside a final ruling of the Industrial Accident Board and for recovery under the Texas Workmen’s Compensation Law. Vernon’s Ann. Civ.St. art. 8306 et seq. At conclusion of testimony the trial court granted motion of appellee (insurance carrier) for instructed verdict, on ground that plaintiff’s injury did not arise out of or in the course of her employment; and from defendant’s judgment thereon, appeal was taken.

Undisputed and material facts are these: For some years previous to the accident (January, 1942), Mrs. McKim had been employed as hatmaker for Gold-Claire Hat Company, manufacturers of ladies’ hats for sale by wholesale and retail. Plaintiff’s duties were performed on the second floor of the establishment; employes going to and from work by way of front street entrance through office and showroom; dressing and restroom in rear, with stairway leading to second floor where the hats were made. The work hours were from 8:15 A. M. to 5 P.M., lunch period from 12 noon to 12:45 P.M.; a time clock being used by all employes to indicate time they were on and off duty. During plaintiff’s entire service with Gold-Claire, employes had been allowed to buy hats at wholesale prices; on each transaction, as Mrs. Goldberg, assistant manager, stated, the Company made a small profit. Plaintiff testified that employes had access to office, telephone, and other facilities downstairs, with permission to eat lunch on the premises, which they usually did to avoid changing into street clothes; that on the morning in question, she had arrived at 8:15, registered in by time clock on second floor, worked until noon when she punched the clock and took off for the lunch hour. Plaintiff then started downstairs when she. thought of a hat in rear 'of showroom that had struck her fancy a couple of days before; going to the front office and asking Mrs. Goldberg if she might buy it. The latter did not recall the particular hat, telling plaintiff to go back and bring it up to the office where she (Mrs. Goldberg) would determine if the article was for sale; that plaintiff then got the hat, returning to where Mrs. Goldberg was, when, just as she was about to hand it over, plaintiff slipped and fell, sustaining a serious knee injury. At this point, Mrs. Goldberg testified:

“Q. I will ask you to state whether or not you recollect seeing Mrs. McKim just before she received this injury? A. Yes Sir, I saw her.

“Q. Where were you? A. Sitting at my desk.

“Q. Where was Mrs. McKim? A. She was coming from the rear of the store.

“Q. Just tell the court and jury what transpired there? A. Well, sir, I was sitting at my desk with my back to her and she came from the rear from the upstairs factory and asked me if she could buy a certain hat that was hanging in the back, and I told her she would have to show me the hat before I could sell it to her, that some of the hats were samples. And I turned around to finish my work and all of a sudden I heard a scream and turned around and found that she was lying on the floor.”

Mrs. Goldberg also testified that Company transactions were principally wholesale, selling to people when they came into the store; employe’s hat sales being a matter of accommodation. In plaintiff’s cross-examination, the request to go after the hat is given the appearance of an order; she admitting, however, that the only reason for the errand was as above narrated by Mrs. Goldberg; the latter testifying that employes were paid on a straight hourly basis; that buying of Gold-Claire hats had nothing to do with the standing or pay of employes; that she (Mrs. Goldberg) was not particularly interested in whether Mrs. McKim bought the hat or not, and the only reason for her request to get the hat was plaintiff’s inquiry.

Appellant contends for compensability of injury because (1) in going after the hat, under direction of her employer, she was engaged in an act reasonably incident to her employment, the evidence showing that “the company, .to secure the good will and cooperation of its employees, as well as to make a profit, had, for many years invited its employees to buy hats made by them at the wholesale price, and that the hats were kept on display on a part of the premises frequented by the employees in their daily work, and that plaintiff had been attracted to the hat in question during the forty-five minute lunch period which she, along with other employes, customarily spent on the premises, with the knowledge and permission of the employer”; (2) the occasion of plaintiff’s fall was “while she was carrying out an order of her employer to go to the rear of the store and get a certain hat so that the employer could tell whether it was a hat that could be sold to employees under said arrangement, * * *;” and (3) the injuries were sustained while claimant was on premises of work, doing something in furtherance of the employer’s business and reasonably incident to her employment, “even though the thing she was doing was for her personal benefit, as well as for the benefit of her employer, and even though it occurred during her lunch period.”

Article 8309, Sec. 1, Subd. 4, of our Workmen’s Compensation Law, defines “injury sustained in the course of employment” as including “injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” From the beginning, the quoted definition has been held to embrace two elements; that is, to be compensable, the injury (1) must have to do with and originate in the work, and (2) must have been suffered while the employe was engaged in or about the furtherance of the employer’s affairs or business. American Indemnity Co. v. Dinkins, Tex.Civ.App., 211 S.W. 949, writ refused; Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Smith v. Texas Employers’ Ins. Ass’n, 126 Tex. 573, 105 S.W.2d 192.

While the Compensation Law should receive a uniformly liberal construction “to properly care for those injured in the industries of this State” (Acts 40th Leg., 1927, c. 60, p. 84, § 2), the statute does not provide insurance against every accident happening to the workmen, though on the premises of the employer. “* * * the injury must have been received * * * while engaged in the work or business of his employer and must have resulted from a risk or hazard which was necessarily, or reasonably, inherent in or incident to the conduct of such work or business.” Texas Employers Ins. Ass’n v. Grammar, Tex. Civ.App., 157 S.W.2d 701, 704, writ refused. Upon application of the foregoing test, it is apparent that the injuries in question are not compensable. The time was plaintiff’s noon hour. The accident did not arise out of her duties as hatmaker, but rather from an enterprise pursuant to her own personal interest and desire. Except for her decision to purchase the hat, there would have been no consequent request that she go for it, or necessity for the trip she made. An interest, personal to plaintiff, having furnished both the occasion and the trip resulting in her injury, we do not think it can be said that at the time thereof, she was engaged in an act incident to the duties of her employment. The fact situation under review is almost identical with that presented in Industrial Commission of Ohio v. Ahern, 119 Ohio St. 41, 162 N.E. 272, 274, 59 A.L.R. 367; and in denying compensation, the Ohio Supreme Court said: “At the time of her injury the defendant in error was not acting for her employer nor engaged in its service; she was exercising a personal privilege which in no wise fell within the employment for which she had been engaged; she was seeking a personal benefit, and at the time of her injury occupied the relation of a customer to her employer, and not the relation of an employee; she was not under her employer’s control. Had she exercised the privilege of going elsewhere to buy this rug, it could scarcely be maintained that her employer would be liable. The privilege which she did exercise was not required under the terms of her contract, but was purely personal, and its exercise was not incidental to the performance of any required duty. An employee who is injured when engaged, not in the service of an employer, but in pursuance of the employee’s private and personal business, disconnected with the employment, is not entitled to compensation under the Workmen’s Compensation Law.”

The above reasoning is adopted as relevant. At the time, Mrs. McKim was not on duty, and, in the exercise of her privilege, was not engaged in anything incident to her employment. She “was seeking a personal benefit, and at the time of her injury occupied the relation of a customer to her employer, and not the relation of an employee.” But appellant argues that her status was both that of customer and clerk; engaged in an errand under the employer’s direction that was within the scope of the master’s business, though outside her usual duties. The Ahern case, supra, is thus sought to be differentiated. Here, however, plaintiff was employed on an hourly basis and had checked out for the noon interval. The so-called employer’s order must be viewed as merely incident to plaintiff’s errand for the hat; the entire transaction being a personal mission in the exercise of her privilege, wholly independent of the employment or her duties thereunder.

The major factor of plaintiff’s trip occurring while off duty and concerning an objective personal to herself, the resulting injury may not be said to have arisen out of and in course of the employment. On the other hand, her claim plainly falls within that class of cases of which Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 182, is illustrative. Chief Justice Cardozo there held: “We think the accident did not arise ‘out of and in the course of’ any service that Marks had been employed to render. He was not making the journey to Shortsville at the request of his employer or for the purpose of doing his employer’s work. He was making it in fulfillment of a promise to call for his wife at the end of the day, and bring her home in the family car. If word had come to him before starting that the defective faucets were in order, he would have made the journey just the same. If word had come, on the other hand, that his wife had already returned, he would not have made the trip at all. The employment did not bring him on the journey or expose him to its risks. If that is so, it is not ‘out of the employment’ that the injuries arose.”

Likewise in the case at bar, it cannot be said that Mrs. McKim would have made the trip for the hat had she decided that she did not want it. The necessity for the errand was created, not by her work hut by reason of her personal desire, which had nothing to do with, her employment. Cancellation by plaintiff of a purpose to buy the hat would have canceled the necessity for the trip she made. The trip being personal, so also was the risk.

Appellant cites and discusses numerous cases wherein claims more or less analogous have been held compensable; none, however, parallel in fact to the situation at hand; and whether an injury is one aris ing out of the employment is uniformly determinable from the facts themselves. 71 C.J., Sec. 404, p. 658. 1

In Texas, comparable fact situations have been held not to involve liability; Insurors Indemnity & Ins. Co. v. Lankford, Tex.Civ. App., 150 S.W.2d 288, writ refused, where claimant, living at Monahans, had quit work to go home by private conveyance, his next shift beginning midnight following, and was requested in such connection to tell a Monahans repairman about generator trouble at the oil well; J. C. Penney Co. v. Oberpriller, Tex.Com.App., 170 S.W.2d 607, where claimant received permission to get his car from a repair shop and park it near the store for use after the day’s work, at the same time being given a package by the manager for delivery to a bus station. Upon delivering the article and securing his car, the accident occurred on return trip to the store; Kimbrough v. Indemnity Ins. Co., Tex.Civ.App., 168 S.W.2d 708, writ refused, where claimant arrived early at plant, and, along with another employe whom his employer had sent to help him, was endeavoring to locate motor trouble in his car and sustained injury in doing so. The same general standard or test was held to exclude liability in Tom Joyce 7 Up Co. v. Layman, Ind.App., 44 N.E.2d 998, where the employe participated after work hours in a bowling contest, as a member of the Company team, and was injured while returning from a neighboring town; the claim being that, since the employer derived a benefit from advertising its products by means of this activity, the injury was com-pensable.

We forego a discussion of appellant’s cases in interest of brevity. Regrettable as the fact of Mrs. McKim’s injuries may be, we conclude same were sustained while engaged upon a mission not required of her in the discharge of any duty for which she was employed. The judgment appealed from was therefore correct and must be affirmed.

Affirmed.

LOONEY, J., dissents.

1 Of appellant’s citations in support of the three points of error, may be listed: Texas Employers' Ins. Ass'n v. Wright, 128 Tex. 242, 97 S.W.2d 171; Consolidated Underwriters v. Breedlove, 114 Tex. 172, 265 S.W. 128; Columbia Casualty Co. v. Kee, Tex.Civ.App., 11 S.W.2d 529; Commercial Casualty Ins. Co. v. Strawn, Tex.Civ.App., 44 S.W.2d 805; Parker v. Royal Indemnity Co., Tex.Civ.App., 59 S. W.2d 243; Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Kirby Lumber Co. v. Scur lock, 112 Tex. 115, 246 S.W. 76; Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791; Jones v. Casu alty Reciprocal Exch., Tex.Civ.App., 250 S.W. 1073, error refused; Petroleum Casualty Co. v. Green, Tex.Civ.App., 11 S. W.2d 388, error refused; Thomas v. Proc tor & Gamble Mfg. Co., 104 Kan. 432, 179 P. 372, 6 A.L.R. 1145; Associated Indemnity Corp. v. Billberg, Tex.Civ.App., 172 S.W.2d 157; Maryland Casualty Co. v. Stewart, Tex.Civ.App., 164 S.W.2d 800, error refused; Royal Indemnity Co. v. Hogan, Tex.Civ.App., 4 S.W.2d 93; Liberty Mut. Ins. Co. v. Boggs, Tex.Civ.App., 66 S.W.2d 787, 795 (24, 25); Galveston H. & S. A. Ry. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.,N.S., 367.