KIRBY LUMBER CO. v. SCURLOCK et al., 246 S.W. 76

GREENWOOD, J. Defendants in error were the widow and the minor children of J. W. Scurlock, suing plaintiff in error for daihages on account of J. W. Scurlock’s death. The petition of defendants in error contained the following allegations: “

(2) That the 'said J. W. Scurlock, deceased, was yvorking for 'the defendant, Kirby Lumber Company, at its sawmill at the town bf Call jn Newton county, Tex., on the morning of March 5, 1919, just previous, to the time of-his death, and had been so employed for five or six years prior to that time, during which time he lived with his family, plaintiffs herein, but something like two miles from said mill, and near to the log road or tramroad owned by said' defendant, over which it hauled its logs from the woods to its said mill 'to supply its said mill. “

(3) That for five years the said J. W. Scurlock had been accustomed to use defendant’s said log road or tramroad for the purpose of running his velocipede, which he used to make his regular 'trips back and forth from his home to said’ mill, each and every day on which he worked. “

(4) That such use of said tram by the said J. W.. Scurlock was with the knowledge and consent and at the invitation of. the said defendant, -¿nd said defendant from the first of such use knew that said J. W. Scurlock was using said tramroad for such purpose, and defendant, not only did not object to such use of, said tramroad by said J. W. Scurlock, but consented to it, and invited him to use said road in-such manner, and all of said time he was a .valued employee of said defendant at its mill. “

(5) That on March 5, 1919, the mill did not run, and said Scurlock finished all the work he had to do on that- day, at about 12 o’clock noon, and after finishing his work, as was his custom, and had been for about five years, he mounted his velocipede on the said tramroad and started for his home.” It was also alleged by defendants in error that plaintiff in error’s agents and servants operating a log train over' said tramroad, negligently ran the train’ over J. W. Scurlock, on March 5, 1919, cutting his body into” fragments and causing his death.

The petition contained proper averments of relationship between defendants in error and deceased and of damage from his death. Plaintiff in error, among otter defenses, pleaded that it was a subscriber within the terms of the Workmen’s Compensation Law of Texas (Vernon’s Ann. Civ. St. Supp. 1918 arts. 5246-1 to 5246-91), having taken out a policy of insurance in compliance with said law; ttat the injury which caused the death of J. W.

Scurlock was sustained by him in the course of his employment by plaintiff in error, and that defendants in error were denied any cause of action against plaintiff in error, but were entitled to compensation from plaintiff in error’s insurer, which compensation had been tendered and rejected. One of the witnesses for defendants in error testified: “It didn’t make any difference about what kind of weather it was; with a velocipede, a man could • certainly get to work on time.

It facilitated his work for him to be permitted to come in to his work on the velocipede, and it facilitated his returning from his work home.” iThe Court of Civil Appeals found: “No one used this track, as did Scurlock, except employees of the company. On the day of the accident, Scurlock rode from his home to the mill on his velocipede; but, as the mill was idle that day, he did no work for the company. He worked a little on his sizer, and spent the balance of the morning in the shop, working on his velocipede. About noon he left the mill for home, riding his velocipede on the tramroad.

The log train left the mill 20 or 30 minutes later, and ran over and killed Scurlock about a mile and a half from the mill. The defendant was a subscriber under the Workmen’s Compensation Act. * * * Shortly after the death of her husband, Mrs. Scurlock filed a claim un-der the Workmen’s Compensation Law with the Industrial Accident Board. The insurer did not contest the claim, but Mrs. Scurlock dismissed it before an order was entered by the board in her favor. After the claim was dismissed, the insurer tendered checks to Mrs.

Scurlock in the proper amounts under the Workmen’s Compensation Law.” There was testimony that Scurlock’s foreman did not report any time as put in by Scurlock at work for plaintiff in error on the day of his injury and death. Judgment was rendered that defendants in error recover of plaintiff in error damages in the sum of $15,000, on a special verdict, finding that Scurlock’s death was the proximate result of negligence on the part of the agents of plaintiff in error operating the train over the tramroad, and finding that Scurlock was not guilty of contributory negligence.

The judgment was affirmed by the Beaumont Court of Civil Appeals. 229 S. W. 975. The case presents the single question whether, under the pleadings and the undisputed evidence, Scurlock received the injuries •causing his death in the course of his employment, within the meaning of the Texas Workmen’s Compensation Law. If so, by the express terms of the law, defendants in error were not entitled to maintain this suit, but must look for compensation to the insurer.

Accqrding to' the pleadings, Scurlock was injured while returning to his home from his daily labor at the sawmill where he was employed by plaintiff in error, on the tramroad over which logs were supplied to the mill, while using the tramroad by invitation of plaintiff in error as the means of access to,, and of egress from, the sawmill; the injury resulting from a risk necessarily attendant upon the operation of the tramroad.

According to the undisputed evidence, Scurlock was injured on his return to his home from the sawmill, to which he had reported in accordance with his contract of employment, to perform his daily labor as the servant of plaintiff in error, on the tramroad over which logs were supplied to the mill, while using the tramroad, as the means of access to and of egress from the sawmill, with the acquiescence of plaintiff in error, in order to facilitate the work done by Scur-lock for plaintiff in error; the injury resulting from a risk necessarily incident to the movement of the logs to the mill over the tramroad.

Defendants in error mainly predicate their insistence that .Scurlock did not receive his injury in the course of his employment on two propositions: First, that he was not employed by plaintiff in error on the day of his injury, because he was working by the day and the sawmill was closed the' day he was injured, and he performed no service ttat day and earned no wages; and, second, that the cause of the injury was not a risk incident to Scurlock’s employment, because plaintiff in error had not assumed any obligation to furnish Scurlock the tramroad as a means of ingress to and of egress from the sawmill, but that Scurlock had a mere revocable implied license from plaintiff in error to use the tramroad in going to and from his work.

The pleadings of defendants" in error are directly and plainly opposed to the contention that Scurlock was not in the employment of plaintiff in error on the day he was injured. But, tested by the undisputed evidence alone, the law is settled that the relation of employer and employee existed on the day of Scurlock’s injury. In I. & G. N. Ry. Co. v. Ryan, 82 Tex. 565, 18 S.

W. 219, the Supreme Court had to determine whether Byan was in the employment of the International & Great Northern Railway Company at the time he was injured in a collision, in view of Ryan’s own testimony as, follows: First, that he was employed by the day; second, that his hours of work were from 7 in the morning until 12 noon, and from 1 to 6 in the afternoon; third, that his time was his own aftet 6 in the afternoon, and he was entitled to no pay after 6; fourth, that he was a member of the bridge gang whose duty it was to move up and down the railroad making repairs, and that he lived and slept in cars provided by the railroad company for his use, and was attending to his own affairs on the cars, by writing a letter, when the collision occurred' which injured him; and fifth, that he was under no obligation to continue to work for the company after 6 that afternoon, and that the company was under no obligation to keep' him in its employ.

In a well-considered opinion of Presiding Judge Hobby of the Commission of Appeals, which was adopted by the Supreme Court, Ryan was held to have been an employee at the time of the collision in this language: “In this case we think it is evident, from the facts testified to by the appellee, that he was, in contemplation of law, in the employment of the company at the time of the collision. His presence in the ear on the side track at the time of the collision can he explained in no other way wider the proof.

It was only hy reason of the fact that he was an employee of the company that he was in the ear on the side ' track at the time he was injured. We do not wish to be understood as holding that if the fact was established that his employment had terminated he could not recover in a proper case. But we mean to say that we do not think that under the facts in this case his employment had ceased, or that he was not, in, contemplation of law, at the time of the injury, in the service of hit employer.

We think that he was in such employment.” Ryan’s case is decisive that Scurlock would be regarded as an employee in going to and from the mill, .though he had not made repairs during his last visit, on his employer’s machinery, which repairs could hardly be reasonably regarded otherwise than as involving work for his employer entitling him to compensation, - despite the foreman’s failure to make a record of his time. The case is in harmony with abundant authority. See M., K. & T. Ry. Co. v. Rentz (Tex. Civ. App.) 162 S. W. 959; H., E. & W. T. Ry. Co. v. McHale, 47 Tex. Civ. App. 360, 105 S. W. 1151; H. B. & T.

Ry. Co. v. Stephens, 109 Tex. 202, 203 S. W. 41; Bowles v. Ind. Ry. Co., 27 Ind. App. 672, 62 N. E. 95, 87 Am. St. Rep. 279; Wabash Ry. Co. v. Industrial Commission, 294 Ill. 119, 128 N. E. 291; Ewald v. C. & N. W. Ry. Co., 70 Wis. 420, 36 N. W. 12, 591, 5 Am. St. Rep. 178; L. & N. Ry. Co. v. Walker’s Adm’r, 162 Ky. 209, 172 S. W. 517; Williams v. Schaff, 282 Mo. 497, 222 S. W. 416; P., B. & W. Ry. Co. v. Tucker, 35 App. D. C. 123, L. R. A. 1915C, 39; In re Sundine, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318.

" The Supreme Court of Wisconsin demonstrated the correctness of these decisions, as applied to the precise question under consideration, when it used the following language with respect to a pathway which employees were allowed by their employer to use habitually in going to and from their work, viz.: “It was the means, and only means, of entrance and exit to and from their work furnished by the company, and the plaintiff and others had a right to its free and uninterrupted use as they always had; and it was because they were the employees of the company in the roundhouse that they had such right and privilege.

It was an essential part and ingredient of the plaintiff’s contract of employment, and incidental to it, as much as any means and facilities for his labor in the roundhouse itself furnished'by the company. The plaintiff, therefore, while enjoying such privilege and facility, or while passing along that pathway and between the opening of the cars, was an employee and servant of the company, as much as while actually laboring for the company in the roundhouse, and as much' within his contract of employment.” Ewald v. C. & N. W. Ry. Co., 70 Wis.. 420, 36 N. W. 12, 591, 5 Am. St. Rep. 178.

We do not regard it as a matter of moment in arriving at a correct decision whether the- employer had expressly obligated itself to furnish Scurlock the tramroad as a means of access to, and of exit from, the sawmill, or whether Scurlock held a mere implied revocable license to use the tramroad, granted by the employer to facilitate its business. In either event, Scurlock had the right or privilege to use the tramroad. In either event, his right or privilege was derived solely from his contract of employment. In either event, his right or privilege was an incident of his employment.

In either event, in making use of the tramroad, Scurlock was performing a duty of his employment. In either event, his use of the premises facilitated his employer’s business in making surer bis prompt attention to so much of the employer’s work as he was obligated to perform. In either event, his injury was the proximate result of a danger inherently and necessarily incident to the conduct of the master’s business. In either event, the place where he was injured was a part of the employer’s premises, intended for his use as a means of going to and from his work.

In either event, the danger to which he was exposed was not shared by any one not an employee. In either event, the injury occurred at a time-when Scurlock was authorized or expected to be exposed to the danger, incident to the conduct of the employer’s business, from which he sustained his injury. So, in either event,, his injury was received while engaged in the furtherance of the employex-’s business, and his injury originated in the employer’s business. The Texas statute declares that when these tests are complied with the injury is one sustained in the course of employment. In Erie Railroad Co. v.

Winfield, 244 U. S. 170, 87 Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662, the Supreme Court of the United States said: “In leaving the carrier’s yard at the close of his day’s work the deceased was but discharging a duty of his employment. See North Carolina R. R. Co. v. Zachary, 232 U. S. 248, 260, 58 L. Ed. 596, 34 Sup. Ct. Rep. 305, 9 N. C. C. A. 109, Ann. Cas. 1914C, 159.

Like his trip through the yard to his engine in the morning, it was a necessary incident of his day’s work and partook of the character of that work as a whole, for it was no more an incident of one part than of another.” There is no sound distinction in principle, at least under our statute, between this case and the many cases holding that an employee is injured in the course of his employment when the injury is received while using a stairway or elevator which the master expects him to customarily use as a means of getting to and.from his work.

Honnold’s Workmen’s Compensation, vol. 1, § 122; Latter’s Case, 238 Mass. 326, 130 N. E. 638; In re Stacy, 225 Mass. 174, 114 N. E. 206; Starr Piano Co. v. Industrial Accident Commission, 181 Cal. 433, 184 Pac. 861, 862; Cane v. Norton Hill Colliery Co., 78 L. J. K. B. (1909) 921. The honorable Court of Civil Appeals felt constrained to follow the case of American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 951.

We have pointed out why the injury to Dinkins did not originate in the •work or business of his employer, in an opinion this day delivered by this court in the ease of Lumberman’s Reciprocal Association •v. Mrs. Josie Behnken et al., 246 S. W. 72, and we deem it unnecessary to'further differentiate the Dinkins Case. Much that was said in the Behnken Case is applicable to the determination of the question here presented; and, in view of what is there held, we deem it unnecessary to further prolong this opinion.

This case has been argued for both sides with extraordinary ability, and we have ■given careful consideration to the many authorities cited.

Our conclusion being that Scurlock received the injury causing his death in the ■course of his employment, it follows that •defendants in error must look to the Workmen’s Compensation Law to secure compensation for his death, and that the judgments •of the district court and of the Court of ¡Civil Appeals should be reversed, and judgment here rendered for plaintiff in error; and it is so ordered. @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes