I agree with the majority opinion in so far as it holds that the trial court erred in directing a verdict for plaintiff. I am not in agreement, however, with the holding that the cause should be remanded for another trial. I believe that the trial court should have directed a verdict for defendant, and that we should render the judgment which the trial court should have rendered. Texas Rules of Civil Procedure, rule 434.
Plaintiff alleged that one Roland Berry was attempting to back a truck into the dock on the Lind Paper Company premises; that Ferguson, the deceased employee, was endeavoring to assist Berry in backing said truck; and that in so doing Ferguson was performing duties incident to and as a necessary part of his employment and was furthering the interest of his employer. As pointed out in the majority opinion, Berry was not an employee of, nor was his truck owned by, Ferguson's employer. But it appears to me from the record, and from her brief and written argument in this court, that plaintiff has abandoned this theory of recovery.
In her motion for instructed verdict, in presenting the grounds therefor, plaintiff made no claim that Ferguson was injured while assisting the truck which was backing up to the Lind Paper Company dock. After reciting that Ferguson was waiting to leave with his truck, she specifically alleged in this motion as follows:
"That inasmuch as he was either upon, touching, or within a very few inches of his employers' property during working hours and immediately adjacent to his truck situated only a few feet away at a time when he was under specific orders to carry out a specific mission for his employer, it is to be presumed as a matter of law that he was engaged in the furtherance of his master's work and in the performance of his duties in the regular course and scope of his employment at the time he was fatally injured."
The following recital appears in the judgment:
"* * * and the court being of the opinion that the plaintiff's motion for a directed verdict was well taken, in all things sustained the same * * *."
In its brief filed in this court defendant contends that the evidence shows without dispute that the deceased did not receive his injuries in the course of his employment, but that he had turned aside from his employment in order to assist, as a volunteer, the driver of the truck which was backing up to the Lind Paper Company dock. Defendant further contends that plaintiff's petition constitutes a judicial admission that the deceased was assisting the driver of the truck in question at the time he met his death.
In her reply brief filed in this court, plaintiff urgently insists that there is no evidence to show that the deceased employee was directing the movements of the truck on the Lind Paper Company property. To quote, "* * * there is no testimony, by inference or otherwise, that Ferguson was directing the movement of the truck at the time he sustained his fatal injury." She also says: *Page 685
"Plaintiff's motion for instructed verdict was based upon the proposition that the undisputed evidence disclosed that Ferguson sustained his injury while in the course of his employment for the reason that he had reported for his final orders and had been specifically instructed by his employer to wait until he (the superior) had finished checking another truck and while so waiting he received his injury."
The court authorities cited in support of her contention are cases in which the employee had to wait, for some reason or other, until he could continue with his work, and received injuries while waiting.
In another statement in her brief plaintiff declares:
"* * * the only conclusion possible from the entire testimony is that Ferguson was on his way to report to Mr. Ivie after receiving specific instructions to wait and therefore, received his injury while in the course of his employment. The testimony is, therefore, so conclusive that reasonable minds could not differ as to its effect."
In a written argument filed in this court after submission of the case and after the case had been argued orally, plaintiff still urgently denies that Ferguson was killed while assisting the driver of the truck which was backing up to the Lind Paper Company dock. She contends that her pleadings do not constitute a judicial admission to that effect. In this written argument she says:
"Plaintiff calls this Honorable Court's attention to the fact that there is absolutely no competent testimony to the effect that the deceased was directing the movements of the truck at the time he sustained his fatal injuries. * * * there is no testimony in support of defendant's contention that the deceased was directing the movements of the truck and in doing so had departed from the scope of his employment."
Plaintiff's entire argument in this court in support of the directed verdict in her favor may well be summarized by quoting the following from her written argument above mentioned:
"Furthermore, a presumption exists that an employee is killed while in the course of his employment where the evidence discloses that the accident occurred during working hours and at a place where the employee might reasonably be expected to be in the performance of his duties. As the defendant did not, in the case at bar, offer any testimony in order to overcome such a presumption, it is conclusively presumed that the deceased sustained his injuries while waiting, pursuant to instructions of his superior. In support of the foregoing statement plaintiff refers this Honorable Court to the annotation appearing in 120 A.L.R. page 683."
The rule on which plaintiff relies is thus stated in the cited annotation, at page 684:
"It is generally held that when it is shown that an employee was found dead at a place where his duties required him to be, or where he might properly have been in the performance of his duties during the hours of his work, in the absence of evidence that he was not engaged in his master's business, there is a presumption that the accident arose out of and in the course of the employment within the meaning of the compensation acts."
The majority opinion holds that the allegations of plaintiff's petition are sufficient to show that Ferguson was directing the movements of the truck on the adjoining premises when he was injured. The allegations may be taken as an admission against interest by way of defeating plaintiff's recovery, but they cannot supply the lack of proof to support a recovery for plaintiff. It may be questioned whether we should remand the case to give plaintiff opportunity to recover upon a theory which she appears to reject in this court.
Some mention should be made of the ground of recovery which plaintiff declares in her brief and written argument does have support in the evidence. That ground is that Ferguson was awaiting instructions from his employer before leaving with his truck, and that, while waiting, he was injured at a place so near his employer's premises that it must be presumed as a matter of law that he was injured in the course of his employment.
The proof shows without dispute that he was not on his employer's premises, but, on the contrary, was on the premises of *Page 686 another, and was in what proved to be a dangerous place. If we accept appellee's version of the evidence, Ferguson's presence on the Lind Paper Company premises is left completely unexplained, with not a circumstance shown by the evidence from which there could reasonably be drawn any inference that he was there in the performance of any duty of his employment. Even though in a proper case we might infer that an employee had been injured in the course of his employment where the injury was incurred during regular working hours and at a place where the employee had a right to be, we can see no good reason to extend the rule allowing such an inference to a case where the employee was injured off the employer's premises, simply because the place of injury was near the employer's premises. If appellee's version of the evidence is correct, then we have no way of knowing, and nothing from which we can infer a reason, why Ferguson was on the Lind premises at the time he was injured. We might speculate endlessly, but still we would not know. Ferguson might have been on the Lind premises for the purpose of guiding the truck driven by Berry, he might have been doing this in furtherance of the business of Ferguson's employer, he might merely have been acting as a volunteer, for Berry's benefit, he might merely have been crossing the Lind premises for some purpose not connected with his employer's business, he might have been visiting the employees of the Lind Paper Company — we simply do not know from the evidence why he was in front of the Lind dock. The following rule of circumstantial evidence is applicable:
"To establish a fact by circumstantial evidence, the circumstances relied on must have probative force sufficient to constitute the basis of a legal inference; it is not enough that they raise a mere surmise or suspicion of the existence of the fact or permit of a purely speculative conclusion. The circumstances relied on must be of such a character as to be reasonably satisfactory and convincing, or, as has been said, sufficient reasonably to produce belief of the existence of the fact which is sought to be shown by them. At all events they must not be equally consistent with the nonexistence of the ultimate fact." 17 Tex.Jur., p. 908.
At page 692, of the annotation in 120 A.L.R., are cited cases where the presumption aforesaid was not justified by the facts proved.
If we conclude that the proof, coupled with the admission contained in plaintiff's pleadings, shows that Ferguson was endeavoring to assist Berry in backing the truck on the Lind premises, I can find no evidence of probative value from which it may reasonably be inferred that he was doing so in the performance of the duties of his employment. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238. There may be a vague suggestion in the testimony that Ferguson was trying to help maneuver the truck driven by Berry into a position where it would not bar the exit of the truck which Ferguson expected to drive away from the dock, but a conclusion that he was doing so must be inferred only from the fact that the truck driven by Berry was, as it was backing up to the dock, in a position where it barred the exit of Ferguson's truck. I can find no testimony showing that the Berry truck, when it was finally backed up to the Lind dock, was in such position as to leave the way clear for Ferguson's truck to leave. There is no direct evidence that Ferguson was helping Berry in order to keep the Berry truck from backing into Ferguson's truck, or in order to leave the way clear for Ferguson to leave. We must either engage in speculation, or pile inference upon inference, to reach a conclusion that Ferguson was helping Berry in order to carry out the business of Ferguson's employer. Nor, as I read the record, is there any evidence of probative value showing that Ferguson was instructed or authorized by his employer to assist trucks driving in on the Lind Paper Company premises.
In my opinion, plaintiff failed to make out a case of liability, and there is nothing in the record to indicate that the proof would be different on another trial. *Page 687