London Guarantee & Accident Co. v. Thetford

• Court: Texas Supreme Court
• Writing for the Court: Harvey
• Citation: London Guarantee & Accident Co. v. Thetford, 292 S.W. 857 (Tex. 1927)
• Decision Date: 30 March 1927
• Docket Number: (No. 935-4727.)
• Parties: LONDON GUARANTEE & ACCIDENT CO., Limited, v. THETFORD et al.

292 S.W. 857

LONDON GUARANTEE & ACCIDENT CO., Limited, v. THETFORD et al.

(No. 935-4727.)

Commission of Appeals of Texas, Section A.

March 30, 1927.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Mrs. Myrtle Thetford and others against the London Guarantee & Accident Company, Limited. Judgment for defendant, on instructed verdict, was reversed (286 S. W. 1113), and defendant brings error. Reversed, and judgment of trial court affirmed.

Luther Hoffman, of Wichita Falls, for plaintiff in error.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for defendants in error.

HARVEY, P. J.

Upon trial of this case in the trial court before a jury, a verdict was instructed for the plaintiff in error, and judgment rendered accordingly. On appeal by the defendants in error, the judgment of the trial court was reversed and the cause remanded by the Court of Civil Appeals. 286 S. W. 1113. The case is now before us on writ of error. The following statement of the case is adopted from the opinion rendered by the Court of Civil Appeals, to wit:

"This suit was instituted in the district court of Wichita county, Tex., by Mrs. Myrtle Thetford and by her three minor children, through her, as next friend, appellants, against the London Guarantee & Accident Company, Limited, the appellee, to recover under the provisions of the Workmen's Compensation Law of this state for the death of her husband and the father of the children, N. J. Thetford, who was killed by an accident while in the employ of the Mutual Oil Company, which carried indemnity insurance with the appellee.

"Appellants presented their application for compensation for the death of the deceased to the Industrial Accident Board of the state, compensation was refused, and they gave notice that they would not abide the result of the final order of the board, and in due time filed this suit.

"They alleged that N. J. Thetford was on April 30, 1924, the date of the accident resulting in his death, an employee of the Mutual Oil Company and acting in the course of his employment, and while assisting in the transportation of certain tools from Wichita Falls to a lease belonging to his employer in Archer county, and while riding in the car of one of his co-employees in which the tools were being transported as a result of an accidental collision between the car in which he was riding and a car driven by R. D. Underwood, he was killed; that prior to the time of the accidental collision, which resulted in the death of deceased, his employer had obligated itself to furnish him transportation from his home in Wichita Falls, Tex., to his place of work on the lease in Archer county, Tex., a distance of about 25 miles; that if appellants are mistaken as to an express obligation to furnish such transportation, then the employer of the deceased had impliedly bound and obligated itself to transport him from his home in Wichita Falls to his usual place of work on the lease in Archer county, Tex.

"The appellee answered by general demurrer, general denial, and alleged that the deceased was not injured in the course of his employment, but was engaged in a private enterprise for his own pleasure, and was in no way connected with the furtherance of the affairs of his employer; that on the afternoon prior to the accident deceased quit his work on the lease of the Mutual Oil Company in Archer county, Tex., after the hours of his employment were over, and secured permission from M. Marshall to ride with him in his automobile to Wichita Falls, which, as an accommodation to the deceased, the said Marshall granted; that upon arriving at Wichita Falls the deceased secured permission to return to the lease on the following morning with Marshall in his private automobile; that on the date of the accident the deceased and Marshall left Wichita Falls in Marshall's car, and on the way to the lease, on which the deceased was employed to work, the collision occurred which resulted in his death.

"The case was tried before a jury, and at the conclusion of the testimony the trial judge directed a verdict in favor of the appellee, from which action the appellants prosecute this appeal.

"The evidence tends to show that the appellants are the legal beneficiaries of N. J. Thetford, who lost his life in an automobile accident on a public road leading from Wichita Falls, where he lived, to the lease of his employer in Archer county, on which he worked, approximately 25 miles; that said road was the one usually and customarily traveled by the employees of the Mutual Oil Company going from Wichita Falls to the lease; that the Mutual Oil Company carried indemnity insurance with appellee for the benefit of its employees; that the deceased had been working as a roust-about for said company for about six weeks at the time of his death; that the employer had no accommodations for its employees who desired to stay and sleep on the lease; that some of them stayed in the vicinity, and some lived in Wichita Falls, going to and from the lease practically every day. A few of them occasionally slept in the engine room or warehouse on the lease, upon bedding they furnished and spread upon the floor; that the company secured its supplies and tools in Wichita Falls and transported them to the lease in trucks and automobiles; that special trips were not ordinarily made for that purpose, but, when such tools or supplies were needed, they were carried in the early morning to the lease on these motor vehicles, and some of the employees, who stayed at Wichita Falls, were permitted almost each day to ride to their work on such vehicles; that the company owned a truck driven by M. Marshall, used for transportation purposes both on the lease and from Wichita Falls to the lease; that it owned and furnished to the timekeeper, Jacob G. Eipper, a car called a Ford tool pusher, which he used to make the trip from Wichita Falls to the lease and back every day, and which was also used for hauling purposes; that it owned and furnished to M. H. Shanahan, its assistant superintendent, a Buick touring car for his use, and in which he went to and from the lease and to other places on business for his company, and in which sometimes material was carried to the lease; that these machines made the trip from Wichita Falls to the lease and back nearly every night and morning, and that each employee in charge of one of the machines had his headquarters or home in Wichita Falls, and made the trip back and forth practically every day;...