Bissett v. Texas Employers Ins. Ass'n, 13-85-115-CV

• Decision Date: 16 January 1986
• Docket Number: No. 13-85-115-CV,13-85-115-CV
• Citation: 704 S.W.2d 335
• Parties: Eugenia Sedwick BISSETT and Daulton Edwards Bissett, Appellants, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 335

704 S.W.2d 335

Eugenia Sedwick BISSETT and Daulton Edwards Bissett, Appellants, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.

No. 13-85-115-CV.

Court of Appeals of Texas,

Corpus Christi.

Jan. 16, 1986.

Rehearing Denied Feb. 20, 1986.

Gerald D. McFarlen, Law Offices of Bob Patterson, Corpus Christi, for appellants.

Darrell Barger, Corpus Christi, for appellee.

Before UTTER, SEERDEN and BENAVIDES, JJ.

OPINION

UTTER, Judge.

This is an appeal of a worker's compensation case brought by appellants against Texas Employers Insurance Association, appellee, to recover death benefits under the Texas Worker's Compensation Act for the death of their son, James T. Bissett, who was killed in an aircraft accident in Kingsville, Texas. The cause was tried before a jury which found that the death of Bissett did not occur in the course of his employment. We affirm the judgment of the trial court.

The evidence introduced at the trial shows that at the time of his death, Bissett was employed as a project engineer on a salaried basis by Goldston Corporation, or its wholly owned subsidiary, Refinery Maintenance Company, the appellee's insured. Bissett resided in Corpus Christi where the offices of Goldston Corporation are located. Bissett owned a single engine Piper aircraft, which he kept hangared at the Kleberg County Airport.

As a part of his duties with Goldston, Bissett served as a pilot and flew from time to time, in his own plane, his colleagues and superiors at Goldston to various jobs or customers outside the Corpus Christi area.

Bissett had an appointment with William Goldston, Vice-President of Goldston Corporation, to fly to Louisiana on business early on the morning following the fatal crash. On the afternoon prior to the planned business flight with William Goldston, Bissett sought and received a weather forecast from the Federal Aviation Administration's San Antonio Flight Service which indicated deteriorating weather conditions for the following morning, including low ceilings, poor visibility and fog. Sometime after work, Bissett and his wife departed Corpus Christi in a company automobile for the Kleberg County Airport to fly the airplane to the Gulf Aviation hangar in Corpus Christi where he was to meet William Goldston the following morning. It was during the flight from Kingsville to Corpus Christi that Bissett's airplane crashed and he was killed.

The sole issue submitted to the jury was as follows:

Do you find from a preponderance of the evidence that the death of James Bissett occurred while he was in the course of his employment by Goldston Corporation?

Accompanying this special issue was the following instruction:

Injury or death in the course of employment means any injury or death 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. "An injury or death which occurs while traveling to or from work is not in the course of employment unless the employee is performing a service in the furtherance of the employer's business with the express or implied approval of the employer." [Emphasis ours.]

In their first two points of error, appellants complain of the factual and legal sufficiency of the evidence to support the trial court's submission of the emphasized portion of the instruction set forth above. TEX.R.CIV.P. 277 requires the court to "submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict...." An instruction is "proper" if it finds support in any evidence and the inferences to be drawn therefrom, and if it might be of some aid or assistance to the jury in answering the issues submitted. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex.App.--San Antonio 1983, writ ref'd. n.r.e.); Thomas v. Oil & Gas Building, Inc., 582 S.W.2d 873 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd. n.r.e.); Mejia v. Liberty Mutual Insurance Co., 544 S.W.2d 690 (Tex.Civ.App.--Houston [14th Dist.] 1976, no writ).

As a general rule, injuries incurred by employees while traveling to and from work (the "coming and going" rule) are not compensable under the Worker's Compensation Act because they are not incurred in the course of employment as required by TEX.REV.CIV.STAT.ANN. art. 8309 § 1 (Vernon 1967). Meyer v. Western Fire Insurance Co., 425 S.W.2d 628 (Tex.1968); Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.1963); American Home Assurance Co. v. Fabela, 658 S.W.2d 264 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.).

TEX.REV.CIV.STAT.ANN. art. 8309, § 1b, which addresses "Transportation or travel as basis for claim for injury," has two parts. The first part states that in order for injuries incurred during travel to be in the course of employment and therefor compensable, the transportation must be (1) "furnished as a part of the contract of employment," or (2) "paid for by the employer," or (3) "under the control of the employer," or (4) when "the employee is directed in his employment to proceed from one place to another place."

The second part contains what is commonly known as the "dual purpose" rule. It states that injuries incurred during travel for the dual purpose of furthering the affairs or business of the employer and of furthering the employee's personal or private affairs shall not be deemed in the course of employment and therefor compensable, "unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip."

The "special mission" presents another exception to the general rule. An injury is compensable if in going to and returning from his place of employment, the employee undertakes a special mission under the direction of his employer or performs a service in furtherance of his employer's business with the expressed or implied approval of his employer. Texas General Indemnity Co. v. Bottom, 365 S.W.2d at 353.

The jury heard the testimony of Eugenia Bissett, decedent's mother, who testified that it was her son's usual practice to move his airplane from the Kleberg County Airport to the Corpus Christi Airport the night before he had a very early flight planned for the next day because "Jim was not a morning person." There was also testimony given by Daulton E. Bissett, decedent's father, that decedent kept the airplane at Kleberg County Airport for his own convenience because hangar rent at Kleberg County Airport was cheaper than that at the Corpus Christi Airport.

William F. Goldston, decedent's employer, testified that prior to the accident, he thought the airplane was hangared in Corpus Christi rather than Kingsville; that the company reimbursed decedent only for flying time commencing from Corpus Christi; that they never reimbursed him for any flying time from Kingsville to Corpus Christi; and that he was never aware that decedent was flying his airplane from Kingsville to Corpus Christi in order to pre-position it for flights the following day. Mr. Goldston further testified that, knowing now that the plane was kept in Kingsville, it would have been more convenient for him to leave...