Texas Employers Ins. Ass'n v. Grammar

On Motion for Rehearing.

BOND, Chief Justice.

In our original opinion, we tried to deal fairly with the testimony, that no erroneous conclusion should abide upon our labor. In motion for rehearing, appellee does not challenge our findings. Only in the dissenting opinion filed herein are our conclusions of fact assailed, and that, too, upon wholly immaterial matters, in a vain attempt to advance a theory that was not presented either in the trial court or in briefs before this court. The theory of ap-pellee is that the injury occurred in the zone of his employment.

In vindication of the rectitude of the majority opinion, we must, of necessity, rely upon the record upon which we reached the conclusions assailed. There is neither pleading nor proof to sustain a conclusion that the injured employe sustained injury in doing a special service for his employer, which subjected him to the hazards and perils of the street or highway, or that the employment began before appellee reached the salt mine. Plaintiff alleged that he was “regularly engaged as a day laborer by his said employer, Morton Salt Company, doing all kinds of work he was required to do by his said employer, including picking up lumps, cleaning up ladies’ rest room, and other kinds of work; that plaintiff worked .the first hour cleaning out the ladies’ rest room, beginning about 6:30 A. M., and beginning work at his other duties about 7:30 A. M.; that plaintiff’s injuries were sustained about 6:45 o’clock A. M., that plaintiff was approaching, but had not reached the salt mine itself, that plaintiff had been walking down the highway, and at the time of his injuries was walking along by the roadway, but not thereon, that plaintiff was on land either owned or under lease by Morton Salt Company and under the control of Morton Salt Company, therefore plaintiff alleges that he was on the property and premises of Morton Salt Company at the time of sustaining his injuries, was within the vicinity and zone of his work, and was injured between 6:30 and 7:30, and on his employer’s time, * * * ” (Tr. pp. 3, 4). The proof supports the pleadings that plaintiff had been regularly engaged at the salt mine for four or five years prior to his injury, as a janitor, cleaning up the rest rooms, which was required to be done before 7:30 A.M. Plaintiff testified:

“Q. Sir? What kind of work did you do out there at this mine? A. I was supposed to be janitor, cleaning up, but when I got crippled, I was picking blue lumps off the shaker.” (S.F. p. 12).
“Q. Did you have anything else to do out there besides picking up those lumps? A. Yes Sir.
“Q. What was it ? A. I had to clean out the ladies’ rest room and the boys’ rest room.” (S.F. p. 13).
“Q. What time were you instructed by Mr. King to be on the job there in the mornings? A. He said for me to get out there not later than 6:30; to get out there early and clean the ladies’ toilet out the first thing. * * *
“Q. What time did they get to work, usually ? A. They generally got there *709about- — well, all the way from fifteen minutes to 7:30, and from that until the whistle blows.” (S.F. 14).
“Q. The janitor work was different from the other kind of work, separate from it? A. It was separate from it. It is all the same price, only I got an hour for so many minutes — supposed to be the same price, as the other work in the house like I did when I first went out there.” (S.F. p. 15).
“Q. You mean you wouldn’t start picking lumps until you had cleaned up the rest rooms ? A. Not until I had cleaned up the toilets, because I had to get it done before 7:30. Those girls got there generally about 7:15. * * *
“Q. You hadn’t had that job but about a couple of months? A. That job up there picking lumps.
“Q. What had you been doing other than cleaning rest rooms before you started picking lumps? A. I had been sweeping and cleaning the rest rooms and all.” (S.F. p. 73).

From this recited testimony, it is evident that the ladies’ rest room was not on the highway, and that Grammar’s “special service” in cleaning up the rest rooms did not subject him to the hazards of the general public who might be traveling along said highway. Furthermore, the testimony is that he was injured before the hour (6:30 A.M.) he was supposed to be at the plant, and was, when injured, on the State highway leading from Grand Saline to Van, and beyond, en route to his place of employment. He was in a group of employes, required to be at the plant at 6:30 A.M. There are no pleadings and certainly no evidence that Morton Salt Company was to furnish transportation, or that it did so for the early employes; Grammar testifying:

“Q. Did the Morton Salt Company furnish transportation? A. They do to the 7:30 people.
“Q. That is the main bunch of employes? A. That is the main bunch; them that has to get there earlier has to furnish their own way. * * *
“Q. Was that truck furnished by the Morton Salt Company? A. Yes Sir, I suppose it was, or the Insurance Company; one or the other made them take it — (Objection sustained).” (S.F. p. 18).
“Q. Why didn’t you ride in the truck furnished by the Morton Salt Company that morning, Mr. Grammar? A. Because it didn’t go until I was supposed to be there; it didn’t get there early enough.
“Q. If it hadn’t been necessary for you to get there before 7:30, would you have been on the truck that morning?” (S.F. p. 20). This last question and answer were excluded (and correctly so) by the trial court.

In the light of this record, it is difficult to understand the criticism made of our statement that “Mr. Grammar was in the 6:30 group; had worked in that group, as a janitor, five or six years, or ever since the plant started” as being “incorrect and not borne out by. the record”; and that “The version of the majority in regard to the facts is incorrect and not borne out by the record,” unless, forsooth, to foster or nourish the idea heretofore expressed (Texas Employers’ Ins. Ass’n v. Smith, Tex.Civ.App., 75 S.W.2d 732; Id., 129 Tex. 573, 105 S.W.2d 192; Banks v. Commercial Standard Ins. Co., Tex.Civ. App., 78 S.W.2d 660), but not supported by statute or any decision of our Supreme Court, that injuries sustained by an employe on a street or highway, in going to and from his place of employment, are covered by Texas Workmen’s Compensation Law. It is not the character of the work in which the employe is engaged, but the time and place in which the work was to be performed. This injury occurred on the highway before the hour of his employment began, and his work was wholly at the salt mine. The legislative act does not cover the injury; courts should not do so. It is comforting to know that in the dissenting opinion, the law is recognized that “ * * * an employe injured upon a public highway, going to or returning from his work, occasioned by a hazard or risk to which all travelers alike are subjected is not to be regarded as being within the course of his employment.”

Appellee’s motion for rehearing is overruled.