179 S.W.2d 357 | Tex. App. | 1944
Lead Opinion
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 *358 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, Subbed. 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.
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.
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,
Likewise in the case at bar, it cannot be said that Mrs. McKim would have made *360 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 but 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 arising 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.
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.
Dissenting Opinion
My dissent is based upon the conviction that the evidence clearly raised a jury issue; that the trial court erred in directing a verdict for the defendant, and that the judgment below should have been reversed and the cause remanded for further proceedings, for reasons which I shall endeavor to set forth. The facts are undisputed and are set out in the majority opinion by Associate Justice YOUNG.
It is well settled in this state that an employe is entitled to compensation under the Workmen's Compensation Law for injuries received from a hazard to which he is exposed while exercising a privilege granted by the employer, the exercise of which being either directly or indirectly beneficial to the employer. The facts show indisputably that plaintiff was accidentally injured on the premises of the employer from a hazard (slippery condition of the *361 floor) to which she was subjected while exercising the privilege to purchase hats at wholesale price, granted by the employer. On the occasion in question, plaintiff had started down the steps from the second to the first floor to telephone for a sandwich (it being during the 45-minute lunch period), noticing a hat she fancied, and being privileged to purchase same at the wholesale price, approached the assistant manager, Mrs. Goldberg, who, on the occasion, was acting manager of the business, and made inquiry in regard to the hat. As Mrs. Goldberg did not call to mind the particular hat inquired about, directed plaintiff to go and get the hat and bring it to her, and it was while complying with this direction by the general manager that plaintiff was injured.
I think it obvious that the privilege to purchase hats from the company was in no sense a bare gratuity, but was beneficial to the Gold-Claire Hat Company, both directly and indirectly; directly, as on each sale the company made the usual wholesale profit, and indirectly, the privilege extended tended to create and maintain good will among the employes, and a cooperative spirit; and incidentally, the company received the benefit of the advertising value of the public display of its hat creations worn by its employes.
The following cases, in my opinion, support the theory just advanced: In the case of Lumberman's Reciprocal Ass'n v. Behnken,
I also think a fact issue was raised because the evidence showed that plaintiff's engagement, at the time she slipped, fell to the floor and was injured, had a causal connection with conditions surrounding the employment, and was incidental thereto. It was solely by virtue of plaintiff's employment that she was on the premises at the time and place of the injury, and was in the exercise of a privilege that she enjoyed as an employe, that is, of access to the first floor at will.
The following unusual case, in my opinion, supports the doctrine just announced. The case of Southern Surety Co. v. Shook, Tex. Civ. App.
Appellee seeks to narrow the case to the few facts involved in the hat transaction, without taking into consideration the larger group of facts of which the hat transaction was simply a part; and it seems the decision is based upon that theory, as the majority opinion states: "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."
I respectfully submit that this theory leaves out of consideration the fact that, when injured, plaintiff was upon the premises solely because she was an employe, spending the lunch hour (45 minutes) by permission of the employer, which obviously was in its interest, as the employes could immediately and without delay resume work at the expiration of the period; and besides, plaintiff testified she was privileged to go upon the first floor at will, and on the occasion, had started to the first floor to telephone for a sandwich, the telephone being located near the desk of the acting general manager; the floor having recently been rewaxed. Going down the steps, plaintiff noticed a hat she desired, went to the desk of the acting manager with view of making inquiries in regard to its purchase, and, as the acting manager was not familiar with the particular hat mentioned, directed plaintiff to go to the display department and bring the hat to the desk; in the performance of this special duty, plaintiff slipped upon the freshly waxed floor and was injured. These being the undisputed facts, I am of opinion that, under the doctrine announced in repeated decisions of our courts, a jury issue was raised; that is, the evidence showed that plaintiff was injured while performing a special service at the request of the employer, although same was outside the scope of her usual duties, yet was incidental to and within the usual course of the employer's business, which, among other things, was the sale of hats at retail.
I think it may be assumed that plaintiff was acting in a dual capacity at the time, as a customer, in a purely personal capacity, attempted to purchase a hat, as she was privileged to do, but at the time she received the injury, was acting in another capacity, that is, as an employe, was performing a service obviously within the usual course of the company's business and incident thereto, directed by the acting general manager, but for which the service would not have been undertaken and the acccident would not have occurred. Supporting this theory, the Commission of Appeals, in Texas Employers' Ins. Ass'n v. Wright,
The Texas cases cited in the majority opinion presenting similar facts, are Insurors Indemnity Ins. Co. v. Lankford, Tex. Civ. App.
The other cases cited are from other jurisdictions, and it must always be borne in mind that such decisions are predicated on the statutes peculiar to the respective states. But an examination of these cases reveals material factual differences. In the case of Industrial Commission of Ohio v. Ahern,
For the reasons heretofore stated, I think a jury question was raised, that the case should have been submitted, therefore think the majority erred in affirming the judgment below.