American General Insurance Co. v. Coleman

• Decision Date: 29 May 1957
• Docket Number: No. A-6199,A-6199
• Citation: 303 S.W.2d 370,157 Tex. 377
• Parties: AMERICAN GENERAL INSURANCE COMPANY, Petitioner, v. Mrs. Irene E. COLEMAN et al., Respondents.
• Court: Texas Supreme Court

Page 370

303 S.W.2d 370

157 Tex. 377

AMERICAN GENERAL INSURANCE COMPANY, Petitioner, v. Mrs. Irene E. COLEMAN et al., Respondents.

No. A-6199.

Supreme Court of Texas.

May 29, 1957.

Rehearing Denied July 10, 1957.

Collins, Garrison, Renfrow & Zeleskey, Henry H. Rogers, Lufkin, for petitioner.

J. S. Holleman, Livingston, Bates, Cartwright, Miller & Gilley, Houston, for respondent.

CALVERT, Justice.

Suit was instituted by the surviving widow and child of Robert W. Coleman, deceased, as plaintiffs, for statutory death benefits under the Workmen's Compensation Act. Trial before a jury resulted in a verdict and judgment for the plaintiffs.

The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for retrial. 297 S.W.2d 333. Both parties applied for writ of error and both applications were granted.

The application of American General Insurance Company was granted on its points of error asserting that the Court of Civil Appeals erred in failing to render judgment that the plaintiffs take nothing. We have concluded that these points of error must be sustained, and accordingly we reverse the judgments of the Court of Civil Appeals and the trial court and here render judgment that the plaintiffs take nothing.

The facts are undisputed. Robert W. Coleman, husband and father of the plaintiffs, was a professional dragline operator who worked wherever employment was available. He had worked intermittently, but often, for the construction firm of Brown & Root, Inc., over a period of seven or eight years, during which period he had also worked for other construction companies.

In 1954 Brown & Root was engaged in construction work some 17 miles from Jacksonville, Texas. The company maintained a warehouse in Houston, Texas, in which city Mr. Coleman had his residence. For the convenience of those seeking employment Brown & Root's warehouse manager kept a list of persons who were available for construction employment and needed personnel was often obtained from the list. Mr. Coleman's name was on the list. In the early part of November 1954, Mr. Coleman was called by the manager of Brown & Root's warehouse and was advised that employment was available for a dragline operator on the Jacksonville job. He went to Jacksonville and was employed. He had worked on the same project for two or three weeks at an earlier date, following which he had worked for another contractor for two or three weeks.

Mr. Coleman was the owner of a jeep automobile in which he traveled from his home to his place of work and which he used to make the trip to Jacksonville. He also used the jeep for traveling between Jacksonville and the work site. Coleman was the owner also of two large mechanical jacks, a variety of mechanical tools, three or four five-gallon cans and other equipment which he found useful in connection with his work and he had those items in the jeep when he left Houston for Jacksonville. While on the Jacksonville job he was furnished gasoline by Brown & Root to be used in starting the motor on the dragline and in cleaning his tools and he transported the gasoline to the job site in the cans owned by him. He completed his work on the Jacksonville job about 10:30 on 11:00 a. m. on December 5, 1954. The accident occurred on a highway between Jacksonville and Houston. At about 2:00 p. m. his jeep overturned and caught fire and Mr. Coleman sustained third degree burns. He was removed from the scene of the accident to a hospital in Livingston, Texas, where he died at about 9:00 p. m.

While in the hospital at Livingston Mr. Coleman was attended by Dr. James H. Dameron. Over the objection of the defendant, and on the theory that it was a part of the res gestate, Dr. Dameron was permitted to testify to a conversation which he hd with the deceased approximately one hour and fifteen minutes after the accident and after the deceased had been advised that his condition was very serious. Dr. Dameron related that in this conversation the deceased stated that 'he was going from Jacksonville to Houston, that he was driving a Brown & Root jeep, and that he was being transferred, going to be transferred to another job', and that he gave him (the doctor) the telephone number of a person he identified as Brown & Root's foreman and asked that the foreman be notified of his accident.

Coleman was working seven days per week, ten hours per day, and his work week began on Sunday. His rate of pay was $2.25 per hour and time and a half for all hours worked in excess of 40 hours per week. He had been paid for 70 hours' work during the week ending on Saturday, December 4th. At that time he still lacked a few hours' work of completing the job and he returned to work on Sunday morning at about 6:30 or 7:00 a. m. and completed the work, as heretofore indicated, at approximately 10:30 or 11:00 a. m. When he had completed his work Mr. Coleman was given a check for $22.05. It was shown on the face of the check that the payment represented gross earnings of $22.50 for 10 hours' work during the pay period ending December 11, 1954, less a tax deduction of 45 cents. At the time he was paid Coleman was furnished a Termination and Time Order showing that he had been discharged for reasons of reduction of force and containing the following words and figures:

'For Hours and at Rate Shown during Pay Period Ending: 12-11-54

Date Hours Rate Amount

10 2.25 22.50

* * * * * *

Net Due 22.05."

The undisputed evidence is that Coleman had not worked more than four and one-half hours during the pay period beginning on December 5th and ending on December 11th, but the check and the Termination and Time Order both show that he was paid on the basis of ten hours' work. The superintendent of the Jacksonville project, F. E. Schoolcraft, testified that while Coleman had been paid for only ten hours' work each day of the preceding week he had actually worked more than ten hours each day; that no record of the additional time had been kept, and that he and Coleman had estimated that pay for a total of ten hours would compensate Coleman for the work done on the morning of December 5th and the additional work done the preceding week for which he had not been paid. The only other testimony which may be said, even remotely, to explain the discrepancy between the number of hours worked by Coleman during the week ending December 11th and the number of hours for which he was paid for that pay period was the testimony of Mrs. Coleman that when her husband was transferred by Brown & Root to jobs in Louisiana or other parts of Texas he was sometimes paid traveling time.

Mr. Schoolcraft testified that Coleman was discharged when he completed his work on the morning of the 5th, was no longer on the payroll, was not transferred to another job, was not told to report to the Houston officer for reassignment, was free to go where he pleased and to take whatever route he chose and was no longer under his control.

The jury gave an affirmative answer to the single special issue submitted to them which was as follows: 'Do you find from a preponderance of the evidence that the injuries of Robert W. Coleman on December 5, 1954, were sustained by him in the course of his employment for Brown & Root, Inc.?'

American General's contention is that the evidence detailed shows conclusively that Coleman was not an employee of Brown & Root at the time of his injuries, his employment having terminated before he left Jacksonville, and, moreover, that the evidence shows conclusively that even if an employee Coleman was not injured in the course of any employment for Brown & Root. The plaintiffs seek to sustain the verdict of the jury on the ground that permissible inferences from the evidence will support a finding (1) that Coleman was being transferred by Brown & Root to another job, (2) that Coleman was on his way to Brown & Root's Houston office for reassignment, (3) that Coleman was rendering a service for Brown & Root by transporting gasoline and tools, and (4) that Coleman was paid travel time while en route to his home in Houston. The Court of Civil Appeals held the testimony of Dr. Dameron, heretofore noted, to be hearsay and inadmissible and rejected the first three inferences as impermissible. It held that the fourth inference was a permissible one and would, in law, support the jury's verdict. It reversed the judgment of the trial court because of procedural errors.

We agree with the holding of the Court of Civil Appeals that the testimony of Dr. Dameron was not admissible under the res gestae exception to the hearsay rule. Assuming, without deciding, that the setting of the declaration by Coleman-made within a comparatively short time after the accident and while he was in extreme bodily pain and emotional shock-was such as to clothe it with the probability of truth, it is yet lacking in the requirement that it tend to illuminate or explain the exciting event; it does not relate to happenings which were causative or descriptive of the accident. Declarations of this character made after the exciting event are not admissible. Lewis v. J. P. Word Transfer Co., Tex.Civ.App., 119 S.W.2d 106, 108, writ refused; Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 769; Stokes Bros. v. Thornton, Tex.Civ.App., 91 S.W.2d 756, 757, a venue case; Webb-North Motor Co. v. Ross, Tex.Civ.App., 42 S.W.2d 1086, 1087, writ dismissed; Continental Casualty Co. v. Crabb, Tex.Civ.App., 170 S.W.2d 794, writ refused, want of merit; Alfano v. International Harvester Co., Tex.Civ.App., 121 S.W.2d 466, 469, writ dismissed; Texas Law of Evidence, 2d Ed., Vol. 1, sec. 918, p. 700. For cases from other jurisdictions to the same effect, see Annotations, 150 A.L.R. 623, 628 and 163 A.L.R. 15, 198. In the cited cases statements or declarations similar to the one attributed to Coleman, offered for the purpose of establishing that the declarant was an employee of another or at the time...