Jones v. Texas Indemnity Ins. Co.

• Decision Date: 01 June 1949
• Docket Number: No. 4647.,4647.
• Citation: 223 S.W.2d 286
• Parties: JONES v. TEXAS INDEMNITY INS. CO.
• Court: Texas Court of Appeals

Page 286

223 S.W.2d 286

JONES v. TEXAS INDEMNITY INS. CO.

No. 4647.

Court of Civil Appeals of Texas. El Paso.

June 1, 1949.

Rehearing Denied June 29, 1949.

Webb & Rogers and Lester C. Newman, Sherman, for appellant.

Freeman, Wolf, Milam & Bryant and Tom S. Milam, Sherman, for appellee.

PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Grayson County, in a workmen's compensation case. The Texas Indemnity Insurance Company, hereinafter called appellee, instituted action against Vincent E. Jones to set aside an award of the Industrial Accident Board awarding the said Jones compensation as an employee of Montgomery Ward & Company, said appellee being its insurance carrier. The said Jones by cross-action sought recovery against appellee on said workmen's compensation policy. At the close of the evidence the court instructed the jury to return a verdict in favor of appellee. On this verdict judgment was rendered by the court that the appellant Jones take nothing. Appellee's motion for an instructed verdict was in substance that at the time appellant received his injury he was not acting in the course and scope of his employment and the injuries to him in the automobile accident were not sustained by him while he was acting in the furtherance of the affairs of his employer, and in the scope and course of his employment.

There is but one question presented, and that is, did the injuries suffered by appellant arise out of his employment and at the time of suffering same was he acting in the course thereof. Where there is evidence sustaining the contentions of appellant we shall assume the truth thereof, although there may only be an issue of fact for the jury.

Appellant was injured on July 24, 1947, at which time he had been employed continuously by Montgomery Ward & Company for about seventeen years. His duties were those of a service man; he would service and repair radios, refrigerators, washing machines, electric cleaners, irons, fans, motors for power plants, milkers, milking machines, and all articles that Montgomery Ward sold, but particularly electrical appliances. Part of his work was done in the store of his employer in Sherman, but at the store he would also get assignments to the homes of customers to do the repair and service work on equipment. He covered a large territory. The customers of Montgomery Ward would call him at his home and he would frequently go from there to make repairs on their equipment. It may fairly be inferred that this was a duty of his employment. He was on call for emergencies at all times of the day or night, including Sundays. It seems that in many cases he took the calls at his home from the customers direct.

When he first started working in the service department of Montgomery Ward he was originally required to furnish a small pickup truck in which to carry his equipment and tools to enable him to do such work. In 1937 he was permitted to furnish a passenger car in lieu of the pickup truck for this purpose. He was paid mileage of from 7¢ to 4¢ per mile for use of the pickup truck or passenger car when on service calls. At the time of his injury he was paid a salary of $48 per week and 5¢ per mile for the use of his automobile in making service calls. The evidence is silent as to whether his employer paid for the gasoline in his going to and returning from his home. It is clear from the evidence that he was not paid mileage for the trip upon which he was injured.

Jones lived about four miles west of Sherman. On the morning of July 24, 1947, he left his home in his passenger car which he used at all times to make service calls and which on that occasion and at all times he kept equipped with tools and supplies for the servicing and repairing of equipment sold by Montgomery Ward. He was proceeding on U. S. Highway 82 which runs between Gainesville and Sherman, from his home to his employer's store in Sherman, when he was struck by a trailer which came unfastened from a car approaching him, and he was seriously injured. This was the shortest and most direct route from his home to his employer's place of business. One of his purposes in driving his car along the highway to his place of employment was to have same available to go on service calls from his employer's store, also to transport the tools and equipment of his employer to the store to be available in discharging the duties of his employer, these having been transported by the direction of his employer to his home from his employer's store, in accordance with the duties of his employment. A relative was riding with him at the time of the accident.

According to the provisions of the Statute, to be compensable an injury must be one "having to do with and originating in the work, business, trade or profession of the employer received by an employe, while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer's premises or elsewhere." Art. 8309, R.S. 1925, Vernon's Ann.Civ.St. art. 8309.

Beyond any question it is a general rule that an injury received by an employee on the way to or from his employment is not compensable under this Section. However, there are exceptions to this rule. Where an employment as an incident to its prosecution requires traveling along streets or highways, an injury sustained by an employee acting in the course of such employment is compensable, where the employment as an incident to its prosecution requires traveling along streets or highways an injury sustained by employee while returning without material deviation to the place of his abode or place of his employment, same is compensable. Aetna Life Ins. Co. v. Palmer, Tex.Civ.App., 286 S.W. 283; Smith v. Texas Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192; United States Fidelity & Guaranty Co. v. Flanagan, 134 Tex. 274, 136 S.W. 210; Baylor Law Review, Vol. 1, p. 391.

In applying the applicable statute it must be borne in mind that same being remedial in its character, that if there be any reasonable doubt which may arise in a particular case as to the right of the injured employee to compensation, same should be solved in favor of such right. Security Union Ins. Co. v. McClurkin, Tex.Civ.App., 35 S.W.2d 240, Wr.Ref.

In the case just cited one answering a telephone call in his home, the telephone being paid for by his employer, injured by stepping on a needle or pin was held to be entitled to compensation. The phone call related to his employer's business, and the phone, although in the employee's home, was paid for by his employer. Generally speaking, workmen's compensation insurance covers the risks and hazards taken in order to perform the employee's duties, unless same are specifically excepted.

Under Jones' contract of employment he was required to keep and...