Jecker v. Western Alliance Ins. Co., A-9359

• Decision Date: 10 July 1963
• Docket Number: No. A-9359,A-9359
• Parties: Julia Shay JECKER, Petitioner, v. WESTERN ALLIANCE INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 776

369 S.W.2d 776

Julia Shay JECKER, Petitioner, v. WESTERN ALLIANCE INSURANCE COMPANY, Respondent.

No. A-9359.

Supreme Court of Texas.

July 10, 1963.

Rehearing Denied July 31, 1963.

Huson & Bissett, Refugio, Keys, Russell, Keys & Watson, Corpus Christi, Ben A. Donnell, Corpus Christi, for petitioner.

Guittard & Henderson, Victoria, Harry F. Maddin, Victoria, for respondent.

CALVERT, Chief Justice.

Lawrence Jecker was killed in an automobile accident. Based on jury findings that at the time of the accident Jecker was in the course of his employment with Bay Chevrolet, Inc., and was not intoxicated, and a further finding that Mrs. Julia Shay Jecker, his widow, would suffer mainfest hardship if compensation was not paid in a lump sum, the trial court rendered judgment against Western Alliance Insurance Company, Bay Chevrolet's insurer, for Workmen's Compensation benefits to be paid in a lump sum. The Court of Civil Appeals reversed the trial court's judgment and rendered judgment that the plaintiff take nothing. 362 S.W.2d 137.

We reverse the judgment of the Court of Civil Appeals and remand the case to that court for further consideration.

The Court of Civil Appeals expressly sustained points of error presented by Western Alliance asserting that there is no evidence to support the jury's finding that Jecker was in the course of his employment at the time of his fatal accident, and that the finding is so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust. These are the principal holdings which we have for review.

Inasmuch as Jecker suffered his fatal injuries while traveling on a public highway, whether he was in the course of his employment at the time is measured and limited by Secs. 1 and 1b of Art. 8309, Vernon's Ann.Civ.St. ¹ Sec. 1, after eliminating injuries caused under certain circumstances, provides that the term '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.' Sec. 1b, added in 1957, reads:

'Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, 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.'

Special Issue No. 1 inquired whether Jecker was in the course of his employment at the time of his fatal accident. In connection with the special issue, the court gave an instruction defining 'in the course of his employment' in the language of Secs. 1 and 1b of Art. 8309 as that language relates to the facts in the case. The jury was instructed that 'in the course of his employment' meant 'originating in the work, business, trade or profession of Bay Chevrolet, Incorporated, and in the furtherance of its affairs or business.' The instruction then continued as follows:

'However, an employee, while travelling on the highway in an automobile, is not considered as being in the course of his employment unless the transportation is paid for by the employer or unless the employee is directed in his employment to proceed from one place to another place.'

Finally, the instruction advised the jury that travel in furtherance of the business of the employer could not be the basis of a claim that the death occurred in the course of employment if the travel was also in furtherance of personal or private affairs, unless the trip would have been made had there been no personal or private affairs to be furthered and unless the trip would not have been made had there been no business of the employer to be furthered.

The holdings of the Court of Civil Appeals that there is no evidence to support the jury's finding and that such finding is contrary to the weight and preponderance of the evidence, appears to be based upon an erroneous concept of applicable law and an erroneous construction of the trial court's instruction. The court, citing American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374, rested its conclusion on the general rule that an injury incurred in the use of public streets and highways in going to and returning from the place of employment is not a compensable injury because not incurred in the course of the employment as required by Sec. 1 of Art. 8309. There are exceptions to that general rule, also set out in Coleman, but the Court of Civil Appeals was of the opinion that the facts of this case did not bring it within any of the exceptions. It construed the exceptions as being limited to instances in which the employer furnishes transportation to the employee, or pays another to transport him, or directs him to perform a 'special mission' requiring travel on the streets or highways.

The rule and the exceptions mentioned in Coleman should be interpreted in the factual context with which the Court was dealing. In that case the question to be decided was whether a workman whose employment had terminated and who was injured while traveling on a public highway in returning to the city in which he resided was injured in the course of his employment. In deciding the question, we applied the rule or test, and the exceptions, used to determine whether a workman who has completed his work for the day at his place of employment and is injured while traveling on the streets or highways in returning to his place of residence is injured in the course of his employment. The general rule is that he is not. The rationale of the rule is that injury incurred in such travel does not arise out of the employment. Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350.

The general rule is, in reality, even broader than we had occasion to state it in Coleman. It is that injuries incurred by a workman while traveling on public streets and highways are not incurred in the course of employment. But there are exceptions to that rule. One of the exceptions is when injury occurs while the workman is traveling on the public streets or highways pursuant to express or implied requirements of his employment contract. Smith v. Texas Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192; Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238; Jones v. Texas Indemnity Co., Tex.Civ.App., 223 S.W.2d 286, writ refused; Federal Underwriters Exchange v. Lehers, 132 Tex. 140, 120 S.W.2d 791. As a matter of fact, we recognized this exception in Coleman by our quotation from Associated Indemnity Co. v. Bush, 5th Cir., 201 F.2d 843. The rationale of it is that since the workman's employment requires him to subject himself to the risks and hazards of streets and highways, his injuries grow out of his employment. Smith v. Texas Employers' Ins. Ass'n, supra. The exception was well established before the adoption of Sec. 1b of Art. 8309 by the Legislature, and it must be assumed that the section was enacted with full knowledge of it.

Was the exception abolished by Sec. 1b of Art. 8309? We think not. We have recently recognized in Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350, 353, that the Legislature intended by the enactment of Sec. 1b 'to circumscribe the probative effect that might be given to the means of transportation or the purpose of the journey rather than to enlarge the definition (of 'injury sustained in the course of employment') found in Section 1.' But the Legislature surely did not intend to provide that an employee whose employment requires him to travel at his own expense in his own automobile on streets and highways, either constantly or intermittently, should be denied compensation if accidently injured while thus exposed to risks growing out of his employment. Any such holding would be wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobiles in their work, and would be a strict rather than a liberal interpretation of the Workmen's Compensation Act.

It is to be noted that one of the exceptions to the provision in Sec. 1b that 'transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment' is when 'the employee is directed in his employment to proceed from one place to another.' We construe this exception to include those situations in which the employee proceeds from one place to another under the terms of...