ESIS, Inc., Servicing Contractor v. Johnson

• Decision Date: 28 September 1995
• Docket Number: No. 2-94-180-CV,2-94-180-CV
• Citation: 908 S.W.2d 554
• Parties: ESIS, INC., SERVICING CONTRACTOR, Appellant, v. Billy Carl JOHNSON and Texas Workers' Compensation Commission, Appellees.
• Court: Texas Court of Appeals

Page 554

908 S.W.2d 554

ESIS, INC., SERVICING CONTRACTOR, Appellant, v. Billy Carl JOHNSON and Texas Workers' Compensation Commission, Appellees.

No. 2-94-180-CV.

Court of Appeals of Texas,

Fort Worth.

Sept. 28, 1995.

Rehearing Overruled Nov. 2, 1995.

Swift, Bell & Dorman, and Carolyn Mitchell, Fort Worth, for Appellant.

Jim Lane, Fort Worth, for Appellee Billy Carl Johnson.

Dan Morales, Attorney General of Texas, Jorge Vega, First Assistant Atty. Gen., Delmar Cain, Chief, Tort Litigation, and Harry Deckard, Assistant Atty. Gen., Austin, for Appellee Texas Workers' Compensation Commission.

Before CAYCE, C.J., and LIVINGSTON and CHUCK MILLER (Assigned), JJ.

OPINION

CAYCE, Chief Justice.

This is a workers' compensation case tried under the new Texas Workers' Compensation Act, TEX.LAB.CODE ANN. §§ 401.001 et seq. (Vernon Pamph.1995). The Texas Workers' Compensation Appeals Panel determined that appellee, Billy Carl Johnson, sustained an injury in the course and scope of his employment. On appeal to the district court, the jury affirmed the appeals panel decision by finding that the injury was in the course and scope of Johnson's employment.

In this appeal, appellant ESIS, Inc., Servicing Contractor ("ESIS") alleges in four points of error that Johnson was not in the course and scope of his employment when he sustained the injury; the trial court erred in admitting into evidence the appeals panel opinion; the trial court erred in excluding evidence that Johnson had consumed half a beer prior to his injury; and, the trial court erred in permitting the Texas Workers' Compensation Commission to intervene in the case.

We overrule the points of error and affirm the judgment of the trial court.

I.

The evidence admitted at trial showed that on or about March 11, 1991, Johnson, a jailer for the Tarrant County Sheriff's Department, was cleaning his service revolver at his residence at approximately 9:15 p.m. when he accidentally discharged his revolver into his left leg and foot. Johnson had reloaded the revolver after cleaning it and left the room temporarily. When he returned, he saw oil dripping from the revolver. He then picked it up, spun the cylinder to disperse the oil, and, having forgotten that he reloaded it, pulled the trigger.

Following his injury, Johnson made a claim for workers' compensation benefits under Tarrant County's self-insured policy managed by ESIS. The case then proceeded through the administrative process outlined in the Texas Labor Code. See TEX.LAB.CODE ANN. §§ 410.001 et seq. First, a benefit review conference was held wherein the benefit review officer found that the injury was within the course and scope of Johnson's employment. Later, a contested case hearing was held in which the hearing officer found that the injury was not in the course and scope of Johnson's employment. The Texas Workers' Compensation Commission Appeals Panel reversed the findings of the contested case hearing officer and held that the injury was received in the course and scope of Johnson's employment as a matter of law.

The appeals panel decision was appealed to the 141st Judicial District Court of Tarrant County, Texas and proceeded to a jury trial on the sole issue of whether the injury was in the course and scope of Johnson's employment. The jury returned a verdict that upheld the decision of the appeals panel, and judgment was rendered on the verdict.

II.

In its first point of error, ESIS contends that Johnson was not in the course and scope of his employment when he sustained his injury "as a matter of law." The test for "matter of law" points is whether the evidence establishes the critical fact conclusively, ¹ leaving nothing for the jury to decide. In a case where a proponent attacks a jury's failure to find in its favor, arguing that the evidence on the fact question is conclusive, the reviewing court first looks to see whether there is some evidence which supports the adverse finding. William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEX.L.REV. 515, 517-18 (1991); see Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX.L.REV. 361, 362-63 (1960). If no evidence supports the adverse finding, the reviewing court then examines the entire record to determine whether the evidence conclusively established all vital facts in support of the proposition as a matter of law. Powers & Ratliff, supra, at 523-24; see, e.g., Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex.1986); Holley v. Watts, 629 S.W.2d 694, 696-97 (Tex.1982). If the issue is established conclusively by the evidence, the point must be sustained. See Meyerland Community Improvement Ass'n v. Temple, 700 S.W.2d 263, 267 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

In the trial court, ESIS had the burden of proving by a preponderance of the evidence that Johnson did not receive an injury in the course and scope of his employment. See TEX.LAB.CODE ANN. § 410.303. Therefore, we will begin our review of the record with a search for evidence that supports the jury's finding that he did receive his injury in the course and scope of his employment.

The Texas Workers' Compensation Act provides a two-part definition of course and scope of employment: 1) "an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer," and 2) "performed by an employee while engaged in or about the furtherance of the affairs or business of the employer." Id. § 401.011(12); see Biggs v. United States Fire Ins. Co., 611 S.W.2d 624, 627 (Tex.1981). The term includes activities conducted on the premises of the employer "or at other locations." TEX.LAB.CODE ANN. § 401.011(12).

Course and scope of employment is not limited to the exact moment when the employee reports for work, the moment when the employee's labors are completed, nor to the place where work is done. See Deatherage v. International Ins. Co., 615 S.W.2d 181, 183 (Tex.1981). If the injury is the result of an activity that originates from the employment, and is received while the employee is actually engaged in furthering the employer's business, the injury is deemed to have been sustained within the course and scope of employment. TEX.LAB.CODE ANN. § 401.011(12); see Deatherage, 615 S.W.2d at 183. An injury originates from the employment when it results from a risk or hazard that is reasonably inherent or incident to the work or business. Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 110, 246 S.W. 72, 73 (1922).

Having reviewed the evidence supporting the jury's affirmative course and scope finding, we conclude that it is sufficient to establish that Johnson sustained his injury while in the course and scope of his employment as a jailer with the Tarrant County Sheriff's Department. It is undisputed that Johnson was required to possess a firearm and carry it while on duty. The evidence further shows that sheriff department policy directives required that the weapon be maintained in good working condition and routinely cleaned. According to the jail administrator, Jim Minter, all county jailers were required to own a weapon, and each officer had the responsibility for cleaning and maintaining his or her own weapon. Because the sheriff's department did not provide an area at the jail for officers to clean their weapons, Officer Minter testified that the officers were permitted to clean their weapons at home or "anywhere," as long as they showed up for work each day with a clean weapon. This uncontroverted evidence is sufficient to establish that Johnson's injury was of a kind or character originating in or having to do with his duties as a jailer with the sheriff's department, and that the injury occurred while he engaged in the furtherance of his employer's business.

ESIS contends that Banfield v. City of San Antonio, 801 S.W.2d 134 (Tex.App.--San Antonio 1990, no writ), is controlling. Banfield, however, is clearly distinguishable from this case. In Banfield, a San Antonio police officer was shot at home when her minor child picked up the officer's weapon from her dresser and it accidentally discharged while the officer was preparing for bed. The San Antonio Court of Appeals held that her injury was not compensable because the police officer was not discharging any official duty as a San Antonio police officer at the time of her injury. Id. at 136. Unlike the officer in Banfield, Johnson was engaged in an activity which was required by the sheriff's department at the time he was shot. Therefore, the activity in which Johnson was engaged constituted furtherance of his employer's business affairs.

ESIS's reliance on Texas General Indem. Co. v. Bottom, 365 S.W.2d 350 (Tex.1963), is also misplaced. In Bottom, a truck driver was killed in a traffic accident while travelling from his home to his place of employment. The decedent owned the truck in which he was travelling and leased it to his employer. Under the lease agreement the decedent was required to keep the truck properly maintained. The evidence showed that immediately prior to the accident, the decedent had had his truck serviced.

The Supreme Court of Texas found that although "[i]t was [the decedent's] duty as lessor to keep the lease vehicle in proper condition ... the employment contract did not contemplate or require that he subject himself to road hazards for the purpose of maintaining trucks ... leased by [his employer]." Id. at 354. According to the court, "[t]aking the truck to Hillsboro or elsewhere to have it serviced was not part of his job as driver, and there is no evidence that he was on a special mission for his employer." Id. Therefore, the court held the decedent's fatal injuries had nothing to do with the business of his employer, but instead, resulted "from hazards which he as a member of the...