American Gen. Ins. Co. v. Jones

• Decision Date: 18 February 1953
• Docket Number: No. A-3808,A-3808
• Citation: 255 S.W.2d 502,152 Tex. 99
• Parties: AMERICAN GEN. INS. CO. v. JONES et al.
• Court: Texas Supreme Court

Page 502

255 S.W.2d 502

152 Tex. 99

AMERICAN GEN. INS. CO. v. JONES et al.

No. A-3808.

Supreme Court of Texas.

Feb. 18, 1953.

Vinson, Elkins & Weems and C. M. Hightower and B. Jeff Crane, Jr., Houston, for petitioner.

Bliss Daffan and W. B. Irwin, Jr., Houston, for respondents.

WILSON, Justice.

In this workmen's compensation case we must first decide whether there is any evidence to support a jury finding that the deceased was acting within the scope of his employment at the time of his death and then determine the admissibility of certain testimony.

The rules of law are familiar. The Court of Civil Appeals has affirmed a trial court's judgment for the claimant in an opinion reported at 250 S.W.2d 663.

As a factual defense the carrier vigorously contended that the deceased was intoxicated, but it did not gain the point before the jury.

Deceased was a nightwatchman for the Gulf Bitulithic Company which company had a contract to construct a portion of a highway. He was alone at the time of the accident. His body was found lying close to his overturned automobile on the shoulder of the highway near a construction barricade erected to stop traffic. There is no direct proof as to what he was doing, where he was going, what his mission was, or why he was driving at the time of the accident. He was killed during working hours and upon the employer's premises.

The evidence is uncontroverted that up until a few weeks before the accident the employer had machinery stored near an overpass on the construction job. Deceased had the duty of watching this machinery and also had the duty of watching a batching plant some distance away. The spot where he was killed lay on one route between these two places. His duties then included traveling back and forth and it was all right with the employer for him to use his car.

The 'no evidence' point arises from testimony of the witness Homesley (job superintendent) that shortly before the accident a second watchman had been employed to watch the equipment in the vicinity of the overpass. The carrier contends that this testimony establishes that all of the duties of the deceased were 'confined solely' to watching at the plant site.

The carrier also contends that the employee is bound by the testimony because the employee called the job superintendent to the stand. We may say here that where the employee calls an agent of the employer to prove rate of compensation and where the carrier on cross-examination opens up the different subject of scope of employment, the employee is not bound by the testimony on scope of employment under the rule that one calling a witness vouches for his credibility. On that point the carrier made the witness its own. Also because of the method of calculating premiums there are elements of adversity in the three-way relationship of employee-employer-carrier which would make harsh and unfair a rule requiring that all of such a witness' testimony be binding on an employee.

Absent the testimony of the witness Homesley, there is ample evidence to support a finding that the deceased was within the scope of his employment. He was on the employer's premises during working hours traveling a route which under his first employment he had been employed to travel.

Considering Homesley's testimony most favorably to the employee, it cannot be said that all of his duties were confined to the batching plant, although the contract of hire may have confined the watching duties solely to the batching plant. The witness testified:

'Q. Just what did you tell Mr. Wheat about his duties thereafter as night watchman? A. I told Mr. Wheat his duties were to watch the plant site and all the equipment around the plant site from seven o'clock in the afternoon until five in the morning. That is ten hours a night.

'Q. Did you tell him that Mr. Hilton had been placed in charge in guarding the equipment other than at the plant site? A. Yes, sir; he was informed of that.

'Q. Mr. Wheat was by you? A. Yes, sir.

'Q. Did you also inform or tell Mr. Wheat that after that time he wouldn't be required and you didn't want him to watch or guard the machinery down in the general vicinity of the Wye proper? A. That's right, yes, sir.

'Q. Did you tell Mr. Wheat that his duties would be confined solely to the plant site? A. I did, yes, sir.'

We do not think that testimony that the machinery to be watched was located only at the batching plant established as a matter of law that deceased could not leave the batching plant for any purpose without being outside the scope of his employment. There had been thefts from this job. A nightwatchman might need to go for help or to communicate with other nightwatchmen in connection with his work. The above testimony when considered as a whole is fairly susceptible to the construction that the duty referred to in the last question quoted was the 'watching' duty. The deceased was not violating an instruction in leaving the batching plant. There is no testimony of any instructions not to leave the batching plant for any purpose. The carrier in its brief admits this:

'* * * This is not a case in which the employee has violated his employer's instructions as to the time, manner or place in which to perform his work. This is a case in which the employee has departed from the only place at which his work would be performed, thereby placing himself outside the sphere of his employment as expressly fixed by his contract of hire.'

The problem becomes: Does the testimony establish as a matter of law a contract of hire requiring the deceased to remain at the batching plant and not leave it for any purpose? We think not. Homesley did not so testify. The deceased was killed on the premises during his working hours. The point is that even though uncontroverted the testimony relied on by the carrier is not so clear, unambiguous and positive as to establish as a matter of law that any leaving of the immediate area of the batching plant by the deceased for any purpose took him outside of his employment.

On the other hand, this same testimony when considered in the light of the testimony offered also on intoxication, under Sec. 1, art. 8309, R.C.S., Vernon's Ann.Civ.St. art. 8309, § 1, the physical circumstances of the accident, and in the absence of affirmative proof that the deceased was on his employer's business-this same testimony would support a jury verdict that the deceased was outside the scope of his employment. So on the proof before us the matter...