Texas Employers Ins. Ass'n v. Grammar

157 S.W.2d 701, 1941 Tex. App. LEXIS 1051

Opinions

BOND, Chief Justice.

This is a case arising under the Workmen’s Compensation Law, Vernon’s Ann. Civ.St. Art. 8306 et seq. On findings of the jury, judgment was entered, sustaining compensable injury, from which this appeal is prosecuted. The only question presented is that appellee, at the time he received his injuries, was not in the course of his employment with Morton Salt Company.

Appellee, Sam Grammar, was injured by being struck by a motor vehicle while walking down a public highway to his employer’s premises where he would perform the tasks of his daily employment. He was employed by Morton Salt Company at its plant located about a mile or a mile and a half south of the town of Grand Saline. He had no task to perform outside the plant. At the time of his injury, Grammar had not begun his employment for the day; had not reached his employer’s premises, and was doing nothing in furtherance of his employer’s business. The relation of master and servant did not exist at the time of his injury.

The record shows that some of the employes of Morton Salt Company were re quired to begin work at the plant at 7:30 in the morning; others at 6:30. Those beginning at 7:30 were privileged to ride to work in the company trucks. They were told that if they wanted to ride in the trucks, they should meet at a certain place in time to arrive at the plant at 7:30 Those beginning at 6:30 had to make other arrangements. There is no evidence of agreement concerning transportation. Transportation was no part of the contract of employment with either group. Some employes walked, others rode in private cars, and some few rode in the company trucks. Mr. Grammar was in the 6:30 group; had worked in that group, as a janitor, five or six years, or ever since the plant started; and for two months prior to his injury, he picked out blue lumps of salt (non-commercial) that came out on a shaker. The janitor work was required to be done between 6:30 and 7:30 A. M., for which he was allowed an extra hour on his daily_ wages. Mr. Grammar selected his own way of going to the plant to begin his work; never used the company trucks, except in a few instances after he first began working at the plant. On the morning of the accident, he left home early in order to reach the plant by 6:30 and, while walking on the highway en route to work, before the hour to begin his employment, he was severely injured by an automobile. He saw the automobile approaching in a zigzag manner, evidently being operated by a drunken driver, and in a vain attempt to escape being struck, stepped off the road into the barrow pit or ditch, where he was knocked down and injured.

We think it is now well established in this state that, as a general rule, an employe, while going to and from his place of work, is not in the course of his employment, and the injuries he receives while so engaged are not compensable under the Workmen’s Compensation Act of this state. United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 374, 136 S.W.2d 210; Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192; London Guarantee & Accident Co. v. Thetford, Tex.Com.App., 292 S.W. 857; American Indemnity Co. v. Dinkins, Tex.Civ.App., 211 S.W. 949; Sullivan v. Maryland Casualty Co., Tex.Civ. App., 82 S.W.2d 1089; Aetna Life Ins. Co. v. Palmer, Tex.Civ.App., 286 S.W. 283, writ refused; London Guaranty & Accident Co. v. Smith, Tex.Civ.App., 290 S.W. 774, writ refused; Banks v. Commercial Standard Ins. Co., Tex.Civ.App., 78 S.W.2d 660.

Sec. 1, Art. 8309, R.-C.S.1925, Vernon’s Ann.Civ.St. art. 8309, § 1, in defining the term “Injury sustained in the course of employment,” after excluding injury sustained in a certain manner, provides: “ * * * shall include all other 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 employé while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” Under this provision of the statute, it has been uniformly held that an injury received by an employe is compensable only when of such kind and character as had to do with and originated in the work, business, trade or profession of the employer, and when the injury occurred at a time when the employe was engaged in or about the furtherance of his employer’s business.

In the case of Sullivan v. Maryland Casualty Co., supra, recovery was denied by our Court of Civil Appeals on the ground that the employe had chosen to go to work by the shortest route, leading through an alley, across a railroad track and down a poorly lighted street, and while on the street, about 150 feet from the employer’s premises, he was assaulted; the reason advanced for refusal of compensation being that, the employe was subject only to the ordinary hazards of the street, and was at the place where he was injured only for the purpose of reaching his place of labor. In Aetna Life Ins. Co. v. Palmer (writ refused), supra, the deceased, a general foreman, was subject to call at any time. On the morning of the accident, he had been ordered to be at the plant early for a special purpose. As he was walking to the plant, he was struck by a passing truck. The court held that the injury had not been sustained in the course of his employment; that the fact he was subject to call at any time did not require a use of the public streets different from that for which all persons use them at such times. Recovery was also denied in London Guaranty & Accident Co. v. Smith (writ refused), supra. The claimant, a salesgirl and assistant buyer, whose hours on Saturday were until 9 o’clock, had been instructed by her employer to hurry home for supper, then return and go to a hotel to inspect samples of merchandise. She was injured while crossing the street on her way to supper. The court held that the injury had not been received in the course of employment, reasoning, among other things, that her act was not one in furtherance of her employer’s business. In Banks v. Commercial Standard Ins. Co., supra, the employe had been delayed by his foreman on the way to lunch, and was struck while hurrying across the street toward a restaurant. There was the additional fact that he was subject to call throughout the day. This court denied recovery on the ground that the hazards the employe encountered on the public street were not different from those to which the public in general was exposed, and in going on the street he was not acting in furtherance of any business for his employer. In American Indemnity Co. v. Dinkins [211 S. W. 952], the deceased, after leaving his employer’s premises for the day, was struck by an automobile while riding his motorcycle on a public highway. The route taken by the employe was the only one that could have been used, and the company not only tacitly invited the employes to use it, but practically required them to do so. The court held that the injury was not one received in the course of employment, but, on the contrary, was one that might occur to any person on any street, regardless of his employment. In the course of the opinion, the following oft-quoted language is used: “Was the injury sustained by Dink-ins one which originated in the work of his employer, and was it also sustained while he was engaged in or about the furtherance of the affairs of his employer? If so, then what business of his employer was he performing? If one is proceeding to his home for needed rest and refreshment, can he be regarded as engaged in the furtherance of the affairs or business of his employer? If so, then by parity of reasoning the act should be construed to cover injuries received by an employe while he is on his vacation. It is plain that Dinkins sustained his injury after he had abandoned his duties which involved the furtherance of the affairs of the employer.”

So, in the case at bar Grammar sustained his injuries before he had taken up his duties of employment; his employer required him to begin work at 6:30 in the morning; he was injured before that hour. I-Iis duties, which involved the furtherance of the affairs of his employer, were to be'gin and be wholly performed at the employer’s plant; he was injured on the public highway, more than a quarter of a mile away from the place of his employment. Grammar’s employer did not direct or require him to travel the public highway and his employment did not impose upon him the hazards incident to the normal use of such highways. It may be conceded that Grammar received his injuries because of the fact that he was employed by the Morton Salt Company; that he would not have been walking upon the highway at the time and place of the accident and would not have been injured had it not been that he was going to the place of his employment; yet such injury, under the statute, is not com-pensable. In walking on the highway, Grammar was exposed to danger as a member of the public. To entitle him to recover, the injury must have been received by him 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.

The Workmen’s Compensation Law intends to protect employes against risks or hazards taken or imposed upon them in order to perform the employer’s work or. business. It is firmly settled, says our Supreme Court in Smith v. Texas Employers’ Ins. Ass’n, supra [129 Tex. 573, 105 S.W.2d 193], “that compensation is not allowable for injuries to employees while going to or returning from the place of their employment, except in certain particular cases [citing authorities]. This conclusion is based on the premise that one injured upon the streets or highways while going to or from his work suffers his injury as a consequence of risks and hazards of the streets and highways to which all members of the public are alike subject, and not as a consequence of risks and hazards having ‘to do with and originating in the work, business, trade or profession of the employer.’ The statute clearly implies, as has frequently been held, that the injury has to do with and originates in the employment when such injury is the result of some peril, risk, or hazard inherent in or incident to the conduct of the work or business.” Indeed, there are clearly defined exceptions to the general rule that injuries received by employes, while going to and from their places of business, on the highways, are compensa-ble. But it will be observed in all such exceptions that the very nature of the work they have contracted to do forces them to the hazards and perils of the streets and highways. Injuries received by a laundry-wagon driver while using the streets in performance of his duties in delivering 'laundry for his employer, are compensable. Employers’ Indemnity Corp. v. Kirkpatrick, Tex.Civ.App., 214 S.W. 956. Injuries re ceived by an employe while using the streets in the performance of errands for his employer are compensable; Maryland Casualty Co. v. Long, Tex.Civ.App., 9 S.W.2d 458. Many exceptions to the general rule may be cited with authority, but in all such cases the work contracted to be done subjects the injured employe to the risks and hazards of the streets. Such is not this case. The work that Grammar had contracted to do was not performable on the streets and highways; he was not required to expose himself to the risks and hazards of the streets in performance of any work for his employer; he was not performing, at the time of his injury, any service for his employer; and he was not, at the time, covered by Workmen’s Compensation Law. As stated by our Supreme Court. in the Smith case, supra: “ * * * in order that an injury resulting from the risks of the streets may be com-pensable, the employee, at the time of the injury, must be actually engaged in the performance'of some particular duty of his employment, or must be upon some substantial mission of his employer in the course of his employment, which subjects him to such perils.”

This is a typical case of an employe being injured on a public highway while en route to his place of employment, and before his employment began. It cannot be said that Grammar was injured in the course of his employment. The judgment of the court below is reversed and judgment here rendered for appellant.

Reversed and rendered.