Texas Employers' Ins. Ass'n. v. Anderson , 125 S.W.2d 674 ( 1939 )

From the majority opinion, there seems to be some confusion as to the location of the pathway mentioned in the record. There was no pathway leading over the railroad right of way and through the premises of the Morton Salt Company where Mr. Anderson received his fatal injury. The pathway mentioned leads from the vicinity of Mr. Anderson's home, across a broad area of territory to a public road south of the right of way leading east to the business section of Grand Saline. There is nothing in the record to suggest that the Salt Company controlled the land adjacent to the right of way on the south side of the railroad immediately opposite its salt plant, but, on the contrary, the evidence is uncontradicted that, opposite the plant on the south side of the railroad, industrial enterprises — the Gulf, Sinclair and other oil companies — used the land and had a road leading from their oil houses and tank batteries east to the town of Grand Saline. Into this roadway the pathway stopped.

Visualizing the scene, photographs accompany the record, which clearly show that no pathway leads over the right of way where the injury occurred; and, so far as this record reveals, the pathway mentioned in evidence has no bearing on the question of liability, or a basis for the assumption that the Salt Company intended its use as a means of ingress and egress to and from its place of business.

Mr. Anderson's right to use the railroad right of way was not derived from his employment. The Salt Company had no vested right in the right of way, and his employment did not require him to cross the railroad to go to his home. Obviously, his employer had no right to direct his course of travel after leaving its place of business; his employer had no control, and exercised none, over the railroad's right of way or of Mr. Anderson's right to its use. The right of way belonged to the Texas Pacific Railroad Company, and being within the city limits, it was unfenced and used by the general public, with, at least, tacit consent of the Railroad Company. Thus, the injury to Mr. Anderson occurred at a place where the general public was subjected to the same hazards as the employes of the Salt Company, and not a place furnished by Anderson's employer as a special mode of access to his work. His injury certainly did not result from risk or hazard incident to the conduct of his employer's business; did not arise out of his employment. It was undisputably shown that the deceased was on his way home, for no purpose connected with his employment, but solely for purposes of his own — to rest, sleep, and eat.

It is obvious that Mr. Anderson's injuries happened at a time when he was off duty for his employer; that he was not on his employer's premises or on any pathway or entrance to his employer's place of business; that he was not required by his employment to cross the railroad to go home, which was his destination at the time of his injuries; that he was doing nothing in furtherance of his employer's business or in performance of any work or errand for his employer; that he followed his own desires and inclination and was injured in a place that was used by the public generally, thus subjecting himself voluntarily, and over the express warnings of the foreman of his employer's salt plant, to the risks and hazards incident to the use of a public thoroughfare. The risks and hazards the employe voluntarily assumed in crossing the railroad were evidently outside of the risks and hazards incident to his work for his employer, and for which the compensation insurance policy was not issued and the Workmen's Compensation Act not intended to cover.

In the case of Banks v. Commercial Standard Ins. Co., 78 S.W.2d 660,662, writ dismissed, this court said: "It may be conceded that Banks received his injuries because of the fact that he was employed by the Wyatt Metal Boiler Works, would not have been at the place or in the vicinity of the occurrence and would not have been injured had it not been for such employment, therefore, the injury originated in the work, yet, such injury under the statute is not compensable. It must be shown that it was received by the employee while engaged in the work or business of the employer, and resulted from a risk or hazard which was necessary or ordinary or reasonably inherent in or incident to the conduct of such work or business. Lumberman's Reciprocal Ass'n v. Behnken, supra [112 Tex. 103, 246 S.W. 72, 73, 28 A.L.R. 1402]; American Ind. Co. v. Dinkins [Tex. Civ. App.] supra [211 S.W. 949, 954]; London G. A. Co. v. Smith (Tex.Civ.App.) 290 S.W. 774; Texas Employers' Ins. Ass'n. v. Smith, 75 S.W.2d 732, opinion of this Court of September 29, 1934."

In Smith v. Texas Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192; also, in American Indemnity Co. v. Dinkins, Tex. Civ. App. 211 S.W. 949,954, the courts had occasion to consider cognate questions. There, the argument was advanced as here. In the Smith case, opinion adopted by our Supreme Court, Judge German said: "It appears to be the settled rule that even though the contract of employment contemplates that the employee, while engaged generally in the performance of his duties, may be subjected to the perils and hazards of the streets and highways, nevertheless in order that an injury resulting from the risks of the streets may be compensable, 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." [129 Tex. 573, 105 S.W.2d 194.]

It will serve no useful purpose to extend my views beyond that which has so often been decided by the courts of this state. It is clear the injury suffered resulting in death to Mr. Anderson is not compensable under the Workmen's Compensation Laws of Texas; therefore, for the reasons stated, the judgment of the trial court should be reversed and here rendered for appellee.

On Rehearing.