Texas Employers' Ins. Ass'n. v. Anderson

LOONEY, Justice. Appellant, Texas Employers’ Insurance Association (the insurance carrier), instituted this suit against Mrs. May Anderson (widow), Charles Anderson, and Mildred Anderson (children), statutory beneficiaries of C. C. Anderson, deceased, to set aside a final award of the Industrial Accident Board in their favor, on account of the death of the husband and father, alleged to have resulted from accidental injuries received in the course of his employment with Morton Salt Company, of Grand Saline, Texas. Appellees, defendants below, answered the suit and in a cross action, sought to recover the benefits in their favor, as authorized by the Workmen’s Compensation Law (Vernon’s Ann.Civ.St. art. 8306 et seq.). Issue was joined on the allegations of the cross action, but by an agreement all controverted issues were effectually eliminated, except the question, whether, within the meaning of the. Workmen’s Compensation Law, C. C. Anderson was fatally injured in the course of his employment. That issue having been answered by the jury in the affirmative, and as we think with ample evidence to sustain the finding, the court rendered judgment in favor of appellees, to which appellant excepted, gave notice of and perfected this appeal. In view of the situation produced by the agreement, the discussion will be restricted alone, to the question, which, as stated by appellant in its brief (at pages 14, IS), is “whether or not C. C. Anderson was in *675 the course of his employment with Morton Salt Company within the purview and meaning of the Workmen’s Compensation Act of the State of Texas at the time he received the injuries resulting in his death”. The material facts bearing upon that issue are these: The Texas & Pacific Railroad, consisting of a main line and several sidings, extends east and west through the premises of Morton Salt Company in the town of Grand Saline; the lands owned and controlled by the Salt Company adjoin the right of way of the railroad both on the north and on the south; on the north, the Company’s buildings are located, consisting of a large main building, machine shop, cooker shop, boiler and granary room, office, etc. The granary room, in which the deceased worked, was located about 130 feet north of the main line of the railroad; from the granary a footpath extended south to the north line of the right of way of the railroad. On the south side of the right of way, across from the Company’s buildings, a number of oil tanks and warehouses, owned by oil companies, were located. The Salt Company controlled and used several acres of land adjoining the right of way of the railroad on the south side, across from the Company’s buildings just mentioned, upon which it maintained several brine wells, a derrick, a brine tank about 100 x ISO feet in size, a sewer, connected with the plant to carry off waste water, a pump house and an area called “waste land”, on which waste brine from the brine pool was run. There also existed a trail or footpath through this acreage, winding in a northerly direction, crossing a ravine that was bridged, leading to a point on the railroad right of way south of the granary room and in line with the footpath leading south from the granary room to the right of way before mentioned. The deceased had been an employe of the Salt Company for over twenty years and, during that entire time, in going to and from his.work, had customarily walked the footpath on both sides of the railroad and crossed over the right of way at substantially the same place where he was injured. He resided about a quarter, of a mile south, a little west of the building in which he worked; occupied a tenant house belonging to J. S. Land, master mechanic of the Salt Company, and deceased’s foreman, and in the same vicinity a number of other employes of the Salt Company resided, some of whom occupied Company owned houses, all of whom, in like manner, customarily traveled the footpath and crossed over the railroad tracks in going to and from their work at the Company’s plant. The pathway was used exclusively by pedestrians, but, being unfenced, was occasionally used by persons other than Company employes. Deceased was an operator in the granary room, worked on a night shift, customarily relieving his predecessor between 3 and 4 o’clock in the afternoon and was in turn relieved by a successor, between 11 and 12 o’clock at night. On the night of the fatal accident, being relieved about 11:30, deceased checked out and was seen leaving the granary room, on the footpath going south in the direction of his home, and within about ten or fifteen minutes was found by persons attracted by his outcry, on his hands and knees in the path between the granary room and the main line of the railroad. In answer to an inquiry, stated that he had attempted to crawl under a freight car, was caught and his legs cut off. Blood and particles of flesh and bone were found on the south rail of the main line track, and at that point, deceased’s dinner-pail, walking stick, and flashlight were also found, indicating clearly that, in crawling under the car, he had reached the south rail when the train, of which the car was a part, was put in motion resulting in the accident. The fact that deceased was found north of the tracks clearly indicates that, after being wounded, he crawled back over the main line and sidings and onto the pathway leading to the granary room, calling for help. His death occurred about ten days later. There are two other routes that deceased and other employes residing in that vicinity could have traveled to and from the Salt Company’s plant, however, these were circuitous, out of the way, also crossed the railroad tracks, and about twice the distance of the pathway, the latter, being the shortest, safest, most direct and practicable route from the residence of the deceased to the granary where he worked. Its use as a means of ingress to and exit from his place of work not only conduced to his safety and convenience, but contributed to the promptness and efficiency with which he was enabled to discharge the duties owing his employer; hence the reason and necessity for his presence upon the railroad track (that portion of the pathway leading over the railroad right of way) when injured, in our opinion, had to do with, originated in and grew out of the work of the employer; and that, the injury *676 received at the time, place, and under the circumstances, necessarily was in furtherance of the affairs or business of the employer. Evidently, this was realized by the Salt Company, or else the pathway through its premises, which, as disclosed by the record, had been in existence and used daily by the deceased and other employes for over twenty years, would not have been permitted to remain open and subject to such a continuous use. While it was not a prerequisite to recovery by appellees that the injury to deceased should have been sustained on the premises of the employer, yet, in view of the undisputed facts and circumstances, we think it should be so regarded. The Salt Company controlled the land adjacent to the right of way of the railroad on both sides, and its employes, in using the pathway through the premises, in going to and from their work, customarily and necessarily passed over the right of way and tracks of the railroad, without objection by the railroad company, so far as disclosed by the record; hence, we think it may reasonably be assumed that such use was with its permission, and that for the purposes of this case, it may correctly be said that the deceased was injured at a place intended for use as a means of ingress and egress to and from his place of work, and that his departure was so recent and closely connected with the employment as to render it an incident thereto. Neither was it necessary, in our opinion, that the accident should have occurred during the hours of actual service; nor that deceased should have been discharging some specific duty required by his employment at the time of the injury. These views are fully sustained by the authorities, to the effect, that, as a general rule accidents which happen to an employe on his way to and from work are not regarded as in the course of his employment, except while he is at or so near the place of employment as reasonably to be regarded as in effect at the place; or where, if not on the. employer’s premises, he is at or near the place of work and on a road or other way intended by the contract of employment as being the means of access to the work. In Petroleum Casualty Co. v. Green, Tex.Civ.App., 11 S.W.2d 388, 390, writ refused, Judge Gallagher, speaking for the Waco Court, in a well considered compensation case, announced the doctrine, that “It was not necessary that the injury complained of by appellee should have been sustained during the hours of actual service which he was required by the terms of his employment to render to said company. The course of his employment was not limited to the exact moment when he reported for duty at the camp that morning, nor to the moment when his labors for the day were completed. It necessarily included reasonable time thereafter to return from said camp to the highway in the usual and customary manner” (citing authorities) ; and that, “the leaving of the premises where appellee was employed was so closely connected with his employment as to render it a necessary incident thereto. Wabash Railway Co. v. Industrial Commission, supra (294 Ill. 119), page 293 of 128 N. E.” The case of Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 154, 155, 68 L.Ed. 366, 30 A.L.R. 532, is analogous to the case at bar, and arose under the Workmen’s Compensation Law of the State of Utah. Parramore, the employe, resided six miles from the plant of his employer; the only practicable way of ingress and egress customarily traveled by the employes was along a road and across railroad tracks; in passing over the railroad, the automobile in which he rode was struck by an engine on the railroad and he was killed. The court held that liability existed, and, among other things, used the following pertinent language: “We attach no importance to the fact that the accident happened a few minutes before the time Parramore was to begin work, and was therefore, to that extent, outside the specified hours of employment. The employment contemplated his entry upon and departure from the premises as much as it contemplated his working there, and must include a reasonable interval of time for that purpose”. (Citing authorities.) The above authorities were cited and liberal quotations therefrom made by Judge Sharp, in Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63, 64. In Payne v. Wall, 1921, 76 Ind.App. 634, 132 N.E. 707, 708, 49 A.L.R. 427, it was said that: “A servant’s employment is not limited ‘to the exact moment when the workman reaches the place where he is to begin his work, or to the moment when he ceases that work. It necessarily includes a reasonable amount of time and space before and after ceasing actual employment, having in mind all the circumstances connected with the accident. Whether an employee, in going to or returning from the place of his employment, is in the line of his employment, is governed and controlled by the particular cir *677 cumstances and facts of each case. There must, however, be a line beyond which the liability of the employer cannot continue. Where that line is to be drawn is usually a question of fact.’ ” In administering the Workmen’s Compensation Law, doubtless the greatest difficulty is encountered in determining whether, in a particular case, the employe sustained personal injuries in the course of his employment. We are without a formula except the statute, which being phrased in general terms, each case necessarily must be determined on its own peculiar facts, and as a question of fact. As we have just seen, it was not a necessary prerequisite to a recovery by appellees that deceased should have sustained the injury causing death while on the premises of his employer, nor was it necessary that the accident should have occurred during the hours of actual service, nor that the deceased, at the time of being injured, should have been engaged in the discharge of any specific duty incident to his employment. The statute (Art. 8309, § 1, subdiv. 4, Workmen’s Compensation Law), after excepting injuries caused by an act of God, an act of a third person, those received while intoxicated and those wilfully self-inflicted, reads: “but 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.” Although the meaning of the statute is somewhat elusive, yet the comprehensive terms employed indicate that it has an expansive meaning and that, without regard to where, when or how the employe is injured, compensation is due, provided the injury results from a risk or hazard that the employe assumes in order to perform his master’s task. In Lumberman’s Reciprocal Ass’n v. Behnken et al., 112 Tex. 103, 246 S.W. 72, 73, 28 A.L.R. 1402, Judge Greenwood, speaking for the Supreme Court, said: “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 employe 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. Though injuries arising from risks incidental to employment most frequently occur during hours of active labor and on premises within the control of the employer, yet they are not always so circumscribed either as to time or place. * * * Our statute declares that it is not necessary to fix liability that the injury be sustained on the employer’s premises.” In the opinion, Judge Greenwood cited and made liberal quotations from two cases very much in point, one, Judson Mfg. Co. et al. v. Industrial Accident Comm, et al., 181 Cal. 300, 184 P. 1, from the Supreme Court of California. “There one Gallia was struck and killed by an engine operated by the Southern Pacific Company on a crossing over that company’s tracks in San Francisco, which crossing was the authorized means of access to the factory of Gallia’s employer, the Judson Manufacturing Company. Gallia was on the way to his work. He was injured about 20 feet outside the factory gate, and about five minutes before the time for him to begin active work. It was essential to liability under the California act that Gallia, when injured was ‘performing service growing out of and incidental to his employment,’ and was ‘acting within the course of his employment.’ In declaring that compensation should be made under the act for Gallia’s death, the Supreme Court of California said: ‘It seems to us, however, that when an employee has arrived at the premises of his employer, and is thereon for the purpose of immediately commencing his actual work, he is performing service incidental to his employment. The facts stated above show that as between the employer and his employees the path across the Southern Pacific Company’s right of way was in fact a part of the employer’s plant, and that at the time of his death Gallia was there solely in the line of his duty as an employee. It would be a harsh and indefensible rule that would withhold compensation from an employee engaged in traversing a dangerous pathway in his employer’s building on his way to his own particular place of work therein, on the ground that he had not yet entered upon the real work of his employment. We can perceive no difference in principle between such a case and the case at bar.’ ” The other is the case of Procaccino v. E. Horton & Sons et al., by the Supreme Court of Errors of Connecticut, 95 Conn. 408, 111 A. *678 594, 595, 596. The court said: “We hold that the decedent at the time of his injury was using a way of approach over private property from a highway to the defendant’s plant, which way of approach the defendants, in their employment of decedent, contemplated that he should use, and that the decedent in such use of the way was, after he left the highway, in the course of his employment, and that the injury arose out of a danger incident to his employment.” The court had previously said: “When this employee, under the facts found, entered upon the private property lying between Main street and the defendants’ plant, he came within the zone of his employment, and all dangers and perils incident to the use of this method of approach were perils incident to and arising out of his employment.” Another case in point is Utah Apex Mining Co. et al. v. Industrial Commission of Utah et al., 67 Utah 537, 248 P. 490, 49 A.L.R. 415, by the Supreme Court of Utah, holding that: An employe’s death occurs in the course of his employment within the meaning of the Workmen’s Compensation Act, when it is caused by coming in contact with a cable which, without his knowledge, has accidentally become charged with electricity, although he is traveling a little-used path from his working place to the highway after quitting work for the day, the use of which by him had never been sanctioned by his employer, although others were permitted to use it, if its use by him had not been forbidden, and it was more convenient for him than the one regularly provided. Also the case of Benoit Coal Mining Co. et al. v. Moore, et al., 215- Ala. 220, 109 So. 878, by the Supreme Court of Alabama, holding that: in an action, under the Workmen’s Compensation Act (Code 1923, §§ 7534-7597), for death of employe, evidence held to support finding that employe was killed while on'way to working place with knowledge of defendant’s superintendent, who made no objection to particular route followed, and that accident arose out of and in the course of employment, under section 7534. If it be said that, as against the railroad company, Anderson was a trespasser upon its track at the time he was injured, yet, the employer having acquiesced in such trespass by its employes (if it was a trespass), liability under the Compensation Law could not be avoided by reason of that fact. As said by the Supreme Court of the United States, in Bountiful Brick Co. et al. v. Giles et al., 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402, that arose under the Workmen’s Compensation Act of Utah, that liability for an injury to an employe by a railroad train while on his way to work could not be avoided by the fact that the employe was a trespasser on the railroad track, if the employer (as in the instant case) consents to the trespass. For other typical cases in point, involving injuries sustained by employes traveling oh the usual and customary way of ingress to and exit from the employer’s premises not used by the general public, as in the instant case held compensable, see Texas Employers’, etc., Ass’n. v. Thomas, Tex.Civ. App., 283 S.W. 240 (writ refused) ; Petroleum Casualty Co. v. Green, Tex.Civ. App., 11 S.W.2d 388; Employers’ Liability Assur. Corporation v. Light et al., Tex.Civ. App., 275 S.W. 685; Texas Employers’ Ins. Ass’n v. Gill, Tex. Civ.App., 252 S.W. 850. As deceased was injured while traveling a private pathway through the premises of the employer, used by its employes as a way of ingress to and exit from the place where they worked, the case, in’ our opinion, is ruled by the doctrine of the authorities just cited. It is perfectly obvious, we think, that the cases cited by appellant, involving injuries sustained upon public streets or highways, were ruled by an entirely different principle. This was clearly developed by Judge Greenwood in Lumberman’s Recp. Ass’n v. Behnken, supra, in distinguishing that case from the case of American Indemnity Co. v. Dinkins, Tex.Civ. App., 211 S.W. 949, 954, where recovery was denied on the ground that the employe was injured upon a public highway, from a hazard to which each member of the public traveling the highway was exposed. Judge Greenwood said: “Dinkins received his injury in a collision with an automobile. He was returning from work. The automobile was driven by a coemployee returning to work. The collision occurred on one of the public streets of Beaumont, three-fourths of a mile from the employer’s plant. * * * Dinkins’ right to use the street was not derived from his employment. The injury occurred at a place provided by the city for public use, and not at a place furnished by Dinkins’ employer, as a special mode of.access to his work. The danger to Dinkins was one to which each member of the public was alike exposed. He was himself as much exposed to the danger when traversing the street on purely private business as when hurt. Dinkins’ injury did not result from risk or hazard incident *679 to the conduct of his employer’s business. His injury did not arise out of the business. That conclusion accords with the weight of authority, American and British, as do our conclusions herein.” (Citing authorities.) And to the same effect, in Smith v. Texas Employers’ Ins. Assn., 129 Tex. 573, 105 S.W.2d 192, 193, involving a highway injury, Judge German, after announcing the general rule to the effect that, injuries to an employe sustained while going to or returning from the place of employment, were not compensable, citing authorities, said: “This conclusion is based on the premise that one injured upon tihe 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.’ ” Hence, we chink it perfectly obvious that, the underlying reason for the holdings in the Din-kins, Smith and other cases involving highway injuries, does not exist in a case such as the one at bar, involving an injury sustained by an employe while traveling a private way to and from his place of work not usually and customarily traveled by the public. However, in the Smith case, supra, Judge German also announced arguendo a doctrine that we think pertinent, and applicable to the case at bar. He said: “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”; in other words, the language of Judge German implies that, if in view of the nature of the employment, the conditions under which the employe is required to work, including the means afforded for access to and exit from the premises of the employer, the injury sustained could have been foreseen, it is compensable under the Workmen’s Compensation Law. And this would be true, notwithstanding the injury would not have occurred but for the negligence of the employe, or his failure to observe the warning of his foreman. In the instant case, Mr. Land, master mechanic, of the Salt Company, deceased’s foreman, testified, in substance, that he knew it was the custom of Mr. Anderson to crawl under freight cars that happened to block the pathway and had repeatedly cautioned him of the danger of such an undertaking. The deceased having sustained the fatal injury from the very hazard of which he had been forewarned by his foreman, the conclusion is inescapable that, such a result not only should have been foreseen but, in fact, was foreseen, hence arose out of and was a consequence of the employment. Being of opinion that reversible error has not been shown, the judgment of the trial court is affirmed. Affirmed.