Liberty Mut. Ins. Co. v. Nelson

• Decision Date: 29 July 1943
• Docket Number: No. 11553.,11553.
• Citation: 174 S.W.2d 103
• Parties: LIBERTY MUT. INS. CO. v. NELSON.
• Court: Texas Court of Appeals

Page 103

174 S.W.2d 103

LIBERTY MUT. INS. CO. v. NELSON.

No. 11553.

Court of Civil Appeals of Texas. Galveston.

July 29, 1943.

Rehearing Denied September 30, 1943.

Appeal from District Court, Harris County; Phil D. Woodruff, Judge.

Suit by Mrs. Hanna Bronstad Nelson against Liberty Mutual Insurance Company to set aside an award of the Industrial Accident Board in favor of the defendant company, denying death benefits alleged to be due plaintiff. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Kemper, Hicks & Cramer, of Houston (W. L. Kemper, of Houston, of counsel), for appellant.

Baker, Botts, Andrews & Wharton, and Fred V. Hughes, and Albert P. Jones, all of Houston (Denman Moody, of Houston, of counsel), for appellee.

MONTEITH, Chief Justice.

This is an appeal in a workman's compensation suit brought by appellee, Hanna Bronstad Nelson, to set aside an award of the Industrial Accident Board in favor of appellant, Liberty Mutual Insurance Company, denying death benefits alleged to be due appellee and to recover compensation for the death of her husband, Alfred G. Nelson, resulting from an automobile collision alleged to have occurred while he was engaged in the course of his employment with Peterson Bros. of Houston, Texas, who carried compensation insurance with appellant.

In answer to two special issues submitted, the jury found that Alfred G. Nelson sustained fatal injuries on October 16, 1940, while acting in the course of his employment with Peterson Bros., and "that manifest hardship and injury would result to the plaintiff, Hanna Bronstad Nelson, in the event her compensation was not paid to her in a lump sum."

Based upon the answers to these special issues, judgment was rendered in favor of appellee for a lump sum recovery of $6,659.59 from appellant.

The first question presented by appellant in the appeal is whether, at the time Alfred G. Nelson sustained the injuries which resulted in his death, he was actually engaged in or about the furtherance of the affairs or business of his employers, Peterson Brothers.

Alfred G. Nelson, the deceased husband of appellee, died as the result of injuries sustained by him in an automobile collision on the morning of October 16, 1940, at the intersection of Laundale Avenue and Wayside Drive in the City of Houston. At the time of the collision he was driving to Houston from Texas City in a Dodge car owned by him. The deceased was, at the time, employed by Peterson Brothers, a contracting firm, as a foreman in charge of painting on a construction job at Texas City. The record shows that it was a part of his duties as such foreman to obtain material with which to carry on his work. His employer, A. L. Peterson, testified that on previous occasions the deceased had used his own car when it became necessary to procure needed material to carry on his work, and that he was authorized to purchase materials from Pittsburgh Plate Glass Company at Houston for use on the jobs on which he was employed.

The record shows that on the morning of the collision, Nelson was at work in Texas City for Peterson Brothers and that he decided to discontinue the painting on the job for that day and to go to Houston to get some paint and brushes to be used on the job. Nelson lived in Houston with appellee but he had a room in Texas City and as a rule did not go home except at week-ends.

It is apparent from the record that at the time of the collision which resulted in his death, Nelson was following a route which could have taken him to the place of business of the Pittsburgh Plate Glass Company, where he had stated he was going when he left Texas City.

While it is settled in this State that, in order to recover benefits under the Workmen's Compensation Act, it must be shown that an employee was injured while he was engaged in or about the furtherance of the affairs or business of his employer, it is also well settled that where an employee mixes personal matters or missions with those connected with his employment, he does not thereby remove himself from the course of his employment. Associated Indemnity Corporation v. Billberg et al., Tex.Civ.App., 172 S.W.2d 157; Maryland Casualty Co. v. Stewart, Tex.Civ.App., 164 S.W.2d 800; Liberty Mutual Ins. Co. v. Boggs, Tex.Civ.App., 66 S.W.2d 787; Galveston, H. & S. A. R. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073, 10 L.R.A.,N.S., 367.

Under the evidence in the record, we think that the jury was amply justified in finding that Nelson was engaged in the furtherance of his employer's business and was in the course of his employment at the time he sustained the injuries which resulted in his death.

Appellant assigns error in the action of the trial court in admitting, over its objection, the testimony of the witness, C. G. Reynolds, as to what the deceased had said to him in a conversation just prior to Nelson's leaving the plant at Texas City on the morning on which he sustained his fatal injury.

The witness, C. G. Reynolds, testified in effect that on the morning of October 16, 1940, he met Mr. Nelson just prior to the time of Nelson's leaving the plant at Texas City and that Nelson told him that he was going to Houston, Texas, to get some paint and some gold stripe brushes that he had to have before any work could be started on the job, and that he was going to get the material at the Pittsburgh Plate Glass Company at Houston. He testified that after this conversation Nelson got in his car and drove toward the highway.

There is a well recognized exception to the hearsay rule which renders admissible testimony as to declarations of deceased persons of intent, or of a present existing state of mind, as a circumstance showing that deceased was acting within the scope of his employment at the time of his death.

In the case of Maryland Casualty Co. v. Kent, Tex.Civ.App., 271 S.W. 929, a wife was permitted to testify as to a declaration made by her husband on leaving his home, to the effect that he would get his mail and see about an order for his employer. This case was affirmed by the Commission of Appeals in 3 S.W.2d 414. This rule laid down in that case was followed shortly thereafter in the case of Royal Indemnity Co. v. Hogan, Tex.Civ.App., 4 S.W.2d 93, writ of error refused, wherein it was held that statements of the deceased, made at the time he left the shop of his employer, that he was going out to drive a car for the purpose of testing it, were explanatory of his purpose in so doing and therefore admissible under the res gestae rule.

The following cases are in accord with the rule above announced: Maryland Casualty Co. v. Stevens, Tex.Civ.App., 55 S. W.2d 149, writ of error refused; Texas Employers Ins. Ass'n v. Shifflette, Tex. Civ.App., 91 S.W.2d 789; Compton v. Republic B. & L. Co., Tex.Civ.App., 67 S.W.2d 1095; Heaton v. Globe Indemnity Co., Tex. Civ. App., 71 S.W.2d 328; Texas Employers' Ins. Ass'n v. White, Tex.Civ.App., 68 S.W.2d 511.

In the light of these authorities, we think that there can be no doubt but that the testimony of C. G. Reynolds above referred to was admissible. Under this evidence, the jury was authorized to find that Alfred G. Nelson, the deceased, was making a trip to Houston for the purpose of obtaining materials for use in prosecuting the work of his master. That such a trip was an incident of his employment was, we think, borne out by the testimony of his employer, Mr. Peterson, and other witnesses.

It is the settled law that it is immaterial whether the nature of the employment of a compensation claimant involves...