Evans v. Illinois Employers Ins. of Wausau

• Decision Date: 30 May 1990
• Docket Number: No. C-8893,C-8893
• Citation: 790 S.W.2d 302
• Parties: Joyce K. EVANS, Individually and on Behalf of Amanda Jo Evans, a Minor, et al., Petitioners, v. ILLINOIS EMPLOYERS INSURANCE OF WAUSAU, Respondent.
• Court: Texas Supreme Court

Page 302

790 S.W.2d 302

Joyce K. EVANS, Individually and on Behalf of Amanda Jo

Evans, a Minor, et al., Petitioners, v. ILLINOIS EMPLOYERS INSURANCE OF WAUSAU, Respondent.

No. C-8893.

Supreme Court of Texas.

May 30, 1990.

Joe K. Crews, Dallas, for petitioners.

Jeff R. Boggess, Irving, Susan K. Laughead, San Antonio, for respondent.

OPINION

HIGHTOWER, Justice.

This is a worker's compensation case. The issue presented to the court is whether Larry Brawdy and James Evans were on a special mission for their employer, Railroad Builders, on the morning of Monday, February 24, 1986, when the vehicle in which both were traveling was struck by a train. The trial court granted summary judgment in favor of Illinois Employer Insurance of Wausau, the worker's compensation carrier. The court of appeals affirmed, finding that Brawdy and Evans had not begun their workday at the time of the accident, were not on a special mission for their employer, and were not within the course and scope of employment as a matter of law. Agreeing with the decisions of both the trial court and the court of appeals, we affirm.

Railroad Builders was performing under a contract with the Army Corps of Engineers to relocate a county road and railroad tracks and build the necessary bridges. The job site was located six miles north of Tioga, Texas at an area known as Range Creek. A provision in the contract required all personnel working on the job to attend safety meetings held every Monday morning in a trailer located 1- 1/2 miles south of Tioga. Although they began working for Railroad Builders as carpenters on Monday, February 17, 1986, Evans and Brawdy did not attend that day's safety meeting.

On the Friday before the accident, Brawdy and Evans were instructed by their supervisor to attend the safety meeting at 7:30 am on the following Monday morning, at which time their pay began. With Evans as a passenger, Brawdy was driving directly to the meeting at approximately 7:20 a.m. when a collision with a train rendered him a quadraplegic and killed Evans.

Article 8309, section 1, of the Workers' Compensation Act (the Act) provides that an "injury sustained in the course of employment" shall include

all other injuries of every kind and character 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.

TEX.REV.CIV.STAT.ANN. art. 8309, § 1 (Vernon 1967).

In general, injuries which occur while the employee is traveling to or from work are not compensable under the Act. Bissett v. T.E.I.A., 704 S.W.2d 335, 337 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.). As this court stated in American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957), the reasoning behind this rule is that injury incurred in such travel does not arise out of that person's employment, but rather is suffered due to the dangers and risks to which all traveling persons are exposed. Id. at 374. An exception has been made for a "special mission" when an employee is "directed in his employment to proceed from one place to another place." TEX.REV.CIV.STAT.ANN. art. 8309, § 1b (Vernon 1967).

All of Railroad Builders employees were required to attend the regularly scheduled safety meetings as a part of their employment. Since attendance was, therefore, an integral part of the job, and not a special mission, travel to the safety meeting was simply travel to work.

Petitioners assert that the earlier starting time tends to prove (though not conclusively) that this was a special mission. A time change alone has been held insufficient to transform a trip into a "special mission." Bales v. Liberty Mutual Ins. Co., 437 S.W.2d 575, 578 (Tex.Civ.App.--Amarillo 1969, no writ). Petitioners also assert that the different location or site for the meeting indicated that Brawdy and Evans were on a special mission. In Bissett v. Texas Employers Insurance Association, 704 S.W.2d 335 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.), it was recognized that an employee "can have more than one fixed place of employment and that fixed place of employment can change according to the nature of his work." Id. at 338.

In Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.1963), the employee, Bottom, had signed out at his job on Saturday afternoon indicating that he was going home and that he would be available to work the next day. On his way to work on Sunday, Bottom was killed while driving his own vehicle (a tractor-truck leased to his employer). This court, in determining whether Bottom was injured in the course and scope of employment, found that he had driven the truck home at his own expense and to serve his own personal purposes. At the time of the accident, he was returning to his place of employment where he expected to resume his duties. Id. at 354. The court found that his death did not have to do with and originate in the business of his employer but rather was a result of the hazards to which he was exposed as a member of the traveling public. Id. The facts are similar and the result the same in this case.

Similarly, in United States Fire Insurance Co. v. Eberstein, 711 S.W.2d 355 (Tex.App.--Dallas 1986, writ ref'd n.r.e.), a doctor left a golf course in order to...