Hartford Accident & Indemnity Co. v. Bond

• Citation: 199 S.W.2d 293
• Decision Date: 22 November 1946
• Docket Number: No. 2558.,2558.
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. BOND et al.
• Court: Texas Court of Appeals

Page 293

199 S.W.2d 293

HARTFORD ACCIDENT & INDEMNITY CO. v. BOND et al.

No. 2558.

Court of Civil Appeals of Texas. Eastland.

November 22, 1946.

Rehearing Denied January 10, 1947.

Appeal from District Court, Forty-Second District, Taylor County; J. R. Black, Judge.

Suit by Norma Bond and others against the Hartford Accident & Idemnity Company under the Workmen's Compensation Law to recover death benefits for the death of A. C. Bond, who was employed by H. R. Burden, for whom defendant was compensation carrier. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Turner & Seaberry, of Eastland, for appellant.

Scarborough, Yates & Scarborough, of Abilene, for appellees.

GRISSOM, Chief Justice.

Norma Bond et al., the surviving wife and children of A. C. Bond, deceased, sued Hartford Accident and Indemnity Company to recover death benefits under the Workman's Compensation Statute for the death of their husband and father, A. C. Bond. H. R. Burden was Bond's employer, and Hartford Accident and Indemnity Company was his compensation carrier. Upon a jury verdict the court rendered judgment for plaintiffs, and the defendant has appealed.

Bond was employed as a roustabout by W. L. Bradshaw who was the driller on Burden's oil lease in Coleman County, about fifty miles from Merkel. Bond lived three miles west of Merkel. Bradshaw, Bond's immediate superior and boss, lived one half mile south of the railroad tracks in Merkel. There was evidence that Bond left his home about 5:00 P. M. on November 1, 1944; that as he left he stated to his wife, Norma Bond, that he was going to tell Bradshaw that he could not work that night because he was sick and didn't feel like working; that Bond's immediate superior, Bradshaw, who had the right to hire and fire him, had instructed Bond to let him know in advance any time he could not go to work and that Bond had agreed to do so; that it was the custom in the oil well drilling business for a member of a drilling crew to report to his superior in advance if he was not going to work the next tower; that it was important in the drilling of a well to have a full crew; that about one hour after Bond left home he was dead; that he was killed by the collision of his car, which he was driving on a public street in Merkel, with the automobile of another person who was in no manner connected with Bond's employer; and that the place where Bond was fatally injured was on a direct route between Bond's and Bradshaw's homes.

The jury found, among other things, (2) that Bond sustained his injuries while acting in the course of his employment and that (4) Bradshaw had instructed Bond to notify him in advance if he could not work the following tower.

Appellant's principal contention is that there was no evidence, or, in the alternative, insufficient evidence, to support the jury finding that Bond was acting within the scope of his employment at the time he was killed. Appellant earnestly contends that under the undisputed evidence, Bond was not within the course of his employment when killed because he was employed to work as a roustabout in drilling an oil well fifty miles from the place he was killed; that he had certain duties to perform for his employer on the lease; that he was employed to work on a regular shift from midnight to 8:00 A.M.; was paid by the hour only for work performed on the lease during said hours; that he had no duties to perform off the lease; that he was not furnished transportation between his home and the lease; and that he was killed between 6:30 and 7:00 P.M. while off duty, by a collision of his own car with that of a stranger on a public street in Merkel, a hazard to which the public was subject. Appellant further contends that Bond's trip to Bradshaw to notify said driller that Bond, the roustabout, would not work the next tower was not in the performance of such a special duty or mission for his employer as to make Bond's trip for said purpose an act within the scope of his employment to assist in the drilling of an oil well fifty miles away. Appellant also contends that if it be assumed Bond had a special mission to perform by notifying Bradshaw that he would not work the following tower, that said special mission had been completed when Bond was killed, as he had already notified the driller that he would not work and was returning from the driller's home to his own when killed and further that Bond was "fired" while at Bradshaw's home and the employment then ended.

After a painstaking study of the record, we have concluded that the evidence is sufficient to support the finding that Bond was acting within the course of his employment when he was killed.

If, as plaintiffs' evidence indicates, Bond had been instructed by the driller to notify him in advance when he could not work the following tower so that the driller might have opportunity before beginning the next tower to obtain a substitute for Bond to the end that the work of drilling the well might be efficiently continued, and if Bond was killed while returning to the point from which he left to perform such special mission, and he had not deviated therefrom and gone off on a mission of his own, we think he was killed while acting within the scope of his employment within the meaning of the Workman's Compensation Law.

Under the decisions, we do not think the fact that Bond was killed fifty miles from the lease where he was employed to assist in drilling a well; that he was not killed during the regular hours for which he was employed to work as a roustabout; that he was paid by the hour only for work done on the lease between midnight and 8:00 A.M.; that ordinarily Bond had no duties to perform off the lease; that he was killed between 6:30 and 7:00 P.M. (his hours of employment being between midnight and 8:00 A.M.) by a collision between his own car and that of a stranger on a public street in Merkel either or all show conclusively, that is, as a matter of law, that Bond was not acting within the scope of his employment when he was killed.

In Liberty Mutual Insurance Company v. Nelson, 142 Tex. 370, 178 S.W.2d 514, our Supreme Court, under a similar fact situation, refused to hold as a matter of law that the employee was not killed while acting in the course of his employment. In said case the employee was employed as a steel painter. His employer was engaged in the business of steel construction. The employee, Nelson, was paid by the hour and only for the time that he was actually at work on the job where he was working as a painter. Nelson was a painter foreman and had control and supervision over other painters. When Nelson needed help he usually notified his employers, whereupon the employer either procured additional help or authorized Nelson to do so; when Nelson needed supplies he usually notified his employers and they furnished them; sometimes Nelson procured supplies without consulting his employers; the employers did not demand of Nelson that he procure supplies but had acquiesced in his doing so; in so doing Nelson usually used his own car at his own expense and on his own time; when he purchased supplies he did so from a company in Houston and the purchases were charged to the employers' account; this procedure was approved by the employers but Nelson was not required to do such things; when Nelson was killed he was driving from Texas City, where he was working as a steel painter, to Houston, forty or fifty miles away, to purchase supplies for his employer. The work he was employed to do in Texas City could not properly proceed without such supplies, but he could have procured them by notifying his employers. Nelson was killed on a public street in Houston while on his way to purchase supplies for his employers to be used on the job where he was working in Texas City. The Supreme Court said:

"We are unable to say, as a matter of law, that Mr. Nelson was not acting in the course of his employment * * * at the time he received his fatal injuries. It is true that he was not engaged in painting at the time, but he was on a mission pertaining to his employers' business, in furtherance thereof and for their benefit. Also, he was engaged in performing services for his employers * * * Counsel for the Insurance Company lays great stress on the fact that Mr. Nelson was paid nothing for his time or automobile when doing services such as this for his employers. It is true that Mr. Nelson received compensation by the hour only when he was at work on his employers' premises, but we do not regard this as conclusive * * *. If Mr. Nelson needed paint or brushes in...