Texas Employers' Insurance Ass'n v. Dean
Texas Employers' Insurance Ass'n v. Dean
Opinion of the Court
OPINION
In this worker’s compensation case, the main issue is whether the injuries were sustained in the course of the employment. The employee was on her employer’s parking lot, going to her car at night after her work, and was injured by a purse snatcher. Trial was to a jury, which determined that the injury was received in the course of the employment. We affirm the judgment which was entered for the employee.
All of the facts were established by the Plaintiff and a witness called by her. The claimant, Ruth Burns Dean, age 63, was employed as a cashier and supervisor at a large K-Mart on North Mesa in El Paso. She worked a regular 8-hour shift, and her duties consisted of operating a check-out counter, as well as supervising and checking out the other cashiers at the end of her work day, and then turning in all cash receipts to the manager’s office located at the rear of the store. On October 14, 1976, Mrs. Dean was working the last shift which ended at 10:00 p: m. She then checked out, turned in all of the cash receipts, punched the time clock card, picked up her purse and left by the front of the store at about 10:30 p. m., intending to go to her car. She
Essentially, the insurance carrier’s third and fifth points are that there was no evidence to support either the submission or the finding by the jury that the Plaintiff was injured in the course of her employment, the carrier arguing: (1) that, under the undisputed evidence, Mrs. Dean was off work at the time of her injury and her injury was suffered only as a consequence of risk and hazard to which all members of the public are subjected, rather than a hazard having to do with and originating in the work or business of her employer; and (2) she was not injured ás a result of her work environment, as the assault was directed to her for personal reasons only and purely as a member of the public and not because of her presence on the K-Mart parking lot as an employee.
The following instructions were given in connection with the offending issue:
‘INJURY IN THE COURSE OP EMPLOYMENT’ means any injury 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.
‘If an employee is injured while passing to or from work over the employer’s premises, the injury is one arising out of and in the course of employment as much as though it had happened in her work at the place of its performance.’
‘An injury is not in the course of employment if it is caused by the act of another person intended to injure the employee because of reasons personal to the employee and not directed against her as an employee or because of the employment.’
‘In connection with the above you are further instructed that if an employee is assaulted on the premises of the employer where the environment contributed to the risk and where she would not have been assaulted except for her presence on such premises, any injuries sustained by the employee are sustained in the course of employment.’
What we have stated so far is only to emphasize that the injury was received within the reasonable time period and in the area where coverage usually extends. It does not end the matter, as the injury was caused by the attempted purse snatcher. Section 1 of Article 8309, Tex.Rev.Civ. Stat.Ann., declares that an injury is not sustained in the course of employment and is not compensable if it is “caused by an act of a third person intended to injure the employee because of reasons personal to him and not directed against him as an employee, or because of his employment.” This intentional injury exclusion was first considered in Vivier v. Lumbermen’s Indemnity Exchange, 250 S.W. 417 (Tex.Com. 1923). There, a night watchman was killed while on duty on his employer’s premises,
This “positional risk” test was followed in Commercial Standard Insurance Company v. Marin, 488 S.W.2d 861 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.). There, the Court afforded coverage where the service station employee was raped and murdered in the darkness of the early morning hours as she was in the process of opening her employer’s service station for business. The Court stated the following at 869:
It is well settled that if an injury is received by an employee while he is acting within the course of his employment, and such injury is the result of a risk or hazard of the employment, it is compen-sable. . . . With specific reference to assaults this well settled doctrine, at the very least, means . . . that an assault arises out of the employment if the risk of assault is increased because of the nature of the work, or if the reason for the assault is a quarrel having its origin in the work.
See: Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex.Civ.App.—Eastland 1931, writ ref’d).
Here, the conditions of Mrs. Dean's employment increased the risk of a personal attack and subjected her to a danger incidental to her employment. She was walking in the partially darkened parking area while wearing a K-Mart jacket. She was assaulted by a man who had just been in the store, who had registered interest in the money in her drawer, and who waited for her in order to grab her purse and make his getaway. We hold that- the course of employment finding, and the submission of the instructions in connection therewith, were supported by legally sufficient evidence. We also reject any argument that, as a matter of law, the injury resulted from the act of the assailant because of reasons personal to him. See: Highlands Underwriters Insurance Company v. McGrath, 485 S.W.2d 593 (Tex.Civ.App.—El Paso 1972, no writ). The four points under discussion are overruled.
Point IV is to the effect that paragraphs two and four constituted an impermissible comment on the weight of the evidence. While the first instruction contained in paragraph two is erroneous, we do not agree that they are subject to the specific objections made to them. To constitute a comment on the weight of the evidence, the instruction must be worded so as to indicate an opinion by the trial judge as to the verity or accuracy of the facts inquired about. These instructions do not assume the nature of the answer. McDonald Transit, Inc. v. Moore, 565 S.W.2d 43 (Tex. 1978); Metal Structures Corporation v. Plains Textile, Inc., 470 S.W.2d 93, 102 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.). As presented, the point is overruled.
The last point complains of the exclusion of testimony by Mrs. Dean’s husband relating to an impression on his part that she held him responsible for the attack. As developed on voir dire, the husband obtained this impression from a letter written by Mrs. Dean’s sister. We find no error in the trial Court rejecting the conclusion which was based on the hearsay conclusionary statement of the sister, and the point is overruled.
The judgment of the trial Court is affirmed.
Reference
- Full Case Name
- TEXAS EMPLOYERS' INSURANCE ASSOCIATION v. Ruth Burns DEAN
- Cited By
- 4 cases
- Status
- Published