Highlands Ins. Co. v. Youngblood, 09-91-039
| Decision Date | 05 December 1991 |
| Docket Number | No. 09-91-039,09-91-039 |
| Citation | 820 S.W.2d 242 |
| Parties | HIGHLANDS INSURANCE COMPANY, Appellant, v. Mildred Janice YOUNGBLOOD, Appellee. CV. |
| Court | Texas Court of Appeals |
Clayton E. Dark, Jr., Lufkin, for appellant.
John H. Hannah, Jr., Austin, Claude E. Welch, Welch & Ward, Lufkin, for appellee.
Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.
Workman's Compensation case. Death Case.
Question number one was submitted to the jury; it reads:
QUESTION NUMBER 1:
Was Lloyd Youngblood in the course and scope of his employment for Temple-Eastex at the time of his fatal accident on February 10, 1988?
Answer "Yes" or "No."
The issue on appeal is whether there is sufficient evidence to support the "Yes" answer. The appellant basically contends in substance that there was no fact issue to be submitted to the jury, and that there was no evidence or insufficient evidence to support the verdict of the jury and the judgment of the trial court. The standard, well-established rules of determining the "no evidence" points of error and the "insufficiency of evidence" points of error have been borne in mind.
The employer set forth a "Fiber Products Operation Position Guide"; the guide applied to Youngblood's position, responsibilities, duties, and obligations. The Position Guide provided for basic functions, general overview responsibilities, and in a separate paragraph, specific responsibilities and duties. One of Lloyd Youngblood's specific responsibilities and duties was to "take all action necessary to insure reliable service to the mill on an as required basis." This meant that the service of the mill shall not be interrupted for any reason within Youngblood's power to control seven days a week, 24 hours a day, 365 days a year. The deceased was to be available for call at all times. Probative evidence of force and value exists that no one but Lloyd Youngblood himself determined whether Lloyd Youngblood would return to the plant and for what reason he would return after the ordinary work day had been concluded. Youngblood had returned to the plant, being the mill, a number of hours after his normal working hours, or normal working day, had been completed. His normal working day was 7:00 a.m. to 4:00 p.m. Lloyd's decision about whether he needed to go back to the plant was strictly his own decision. He needed no approval from anyone for that judgmental action. One witness testified that when a problem arose out at the plant that involved Lloyd's jurisdiction, responsibilities, or duties, or was under his area of supervision; then it was the decision of Lloyd, and his decision alone, as to whether it was necessary or proper for the employee (Youngblood) to go back to the plant after the close of the normal working day.
The mill or plant contained a chip bin and on the occasion in question a large quantity of long, stringy chips, were placed in the bin or mechanism. These types of chips simply would not go through the line. The record reflects it was Lloyd's area of responsibility to go back to the plant for that type of operational problem and that his actions and decisions to do so fell within Lloyd's exclusive realm of his own responsibilities, duties, and decisions about such matters. The record amply contains such relevant testimony. Also it was no one else's responsibility or duty save Lloyd's.
Simply put, it was Lloyd's sole responsibility and decision to return under the Position Guide. Lloyd had a radio which had been issued to him by his employer. The employer had the title to and owned the said radio. Lloyd possessed the prerogative and power to make the decision--being his own decision--about whether the reported problems at the mill were serious enough, or severe enough, to warrant his return. Youngblood was notified of the problem when he was at his home. There existed repeated and repetitious testimony and evidence that it was Lloyd's call and Lloyd's decision if a problem arose as to whether he came back to, or returned to, the mill after the normal working day had concluded. Lloyd had full authority under this record to call himself back to the mill or plant pursuant to the custom and in obedience to the Position Guide. Simply put, he was to take all action necessary to keep the mill running in an efficient manner around the clock 365 days a year.
The Position Guide, above referred to, provided that Youngblood "will use all means available to him to insure that chips are free of tramp materials" and that "he will not allow the mill to be hit with slugs or oversized chips either of which can be detrimental to the operation." Basically, Youngblood was responsible for chip quality used in the mill's bins. He was further responsible for the correct mixture of chips. These responsibilities, obligations, and duties were clearly set forth in the Position Guide applicable to Youngblood.
The Position Guide enunciates these diktats:
1.) Take all action necessary to insure reliable service to the mill on an as required basis. This means that service shall not be interrupted for any reason within his power to control, seven days a week, 24 hours a day, 365 days a year.
....
b.) Fully utilize his people to insure a clean safe operation as outlined by the Temple Management Program.
....
f.) The Woodyard Supervisor or someone designated by him will be available for call at all times. He will keep the Wet End informed concerning who is on call.
2.) The Woodyard Foreman is responsible for all chip inventories as detailed below.
....
c.) He is responsible for chip quality. Through cooperation with the Technical Department, he will insure a regular quality testing program and maintain accurate records of this data. He is further responsible for the correct mixing of chips as supplied to the mill. He will not allow the mill to be hit with slugs of fines or oversized chips either of which can be detrimental to the operation. He will use all means available to him to insure that chips are free of tramp materials. (Emphasis Ours)
The furnished radio was approximately six inches tall and about two and a half inches wide. Youngblood carried this radio attached to his belt or in his pocket. The record clearly reflects that Youngblood carried this radio with him everywhere he went. He carried the radio when he went to the movies for example, because that was his efficient way of keeping contact with the mill and of knowing what was going on and of discharging his responsibilities and duties to his employer at the mill. Our necessary conclusion is that Youngblood was in the furtherance of the business and affairs of his employer and that his fatal injury arose out of his employment. He definitely had this company owned radio with him when he was at home during the evening and after supper hours.
Sometime around or shortly after 8:30 p.m. of the evening or night in question, Youngblood received a telephone call. An employee at the plant wanted to talk to Youngblood. Shortly after the telephone conversation his radio came on, and Lloyd heard voices coming over the radio. The voice of one Bobby Lovell was identified. The voice of Lovell coming over the radio was saying that the chips involved were long and stringy--these same defective, clogging chips were making inoperative a part of the mill. A comment was made that a major effort had been made to correct the problem and that effort had not worked. There was comment that strips and chips were long and stringy also. Again, the voice said that they could not make something work at the mill.
After these radio communications, Youngblood decided to use the telephone. He called the plant. Sworn testimony exists that he was going back to the plant to inspect the shutdown or problem.
It was not unusual for Lloyd to return to the plant at nighttime if a problem arose; he did not go out to the plant every night, however. Lloyd Youngblood was definitely the overall supervisor of the operation involved at the Fiberboard Plant in the problem area, being described as where the down bin was in the chip yard. Bobby Lovell had some minor, inferior responsibility there, but the overall superior supervisor for that operation was Youngblood....
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