Maryland Casualty Co. v. Stewart, 2276.

• Decision Date: 10 July 1942
• Docket Number: No. 2276.,2276.
• Citation: 164 S.W.2d 800
• Parties: MARYLAND CASUALTY CO. v. STEWART et al.
• Court: Texas Court of Appeals

164 S.W.2d 800

MARYLAND CASUALTY CO. v. STEWART et al.

No. 2276.

Court of Civil Appeals of Texas. Eastland.

July 10, 1942.

Rehearing Denied September 25, 1942.

Appeal from District Court, Jones County; Owen Thomas, Judge.

Suit under the Workmen's Compensation Act by Ethel M. Stewart, employee, and her husband, to set aside an award of the Industrial Accident Board in favor of L. B. Price Mercantile Company, employer, and Maryland Casualty Company, insurance carrier. From judgment granting relief, insurance carrier appeals.

Affirmed.

Smith & Eplen, of Abilene, for appellant.

Scarborough, Yates & Scarborough, of Abilene, for appellees.

LESLIE, Chief Justice.

This is a compensation case in which Ethel M. Stewart is the alleged employee, L. B. Price Mercantile Company, the employer, and Maryland Casualty Company, insurance carrier. They will be referred to as employee, employer, and company, respectively. The suit is one in which the employee seeks to set aside the award of the Industrial Accident Board and seeks to recover a judgment by reason of an alleged accidental injury sustained by her in the course of her employment. She alleged that the injury resulted in total and permanent disability. The company denied that the accident occurred in the course of her employment, alleging that she, when injured, was on a mission of her own, or one of pure accommodation for her son, and outside of her prescribed territory. The company further alleged that Mrs. Stewart was at the time of the injury an independent contractor, and not within the protective terms of the policy.

The jury, in response to special issues, found in favor of the alleged employee, and judgment was entered accordingly. The company appeals, basing same upon several propositions of law.

More in detail the facts of the case are, in substance, as follows:

Mrs. Ethel M. Stewart was an employee of the L. B. Price Mercantile Company on March 22, 1941. The Mercantile Company was engaged in the sale of merchandise commonly used by the ordinary home owner. Mrs. Stewart was employed as a saleslady of such merchandise, which consisted of bedspreads, linens, curtains, and various other items all suitable and convenient in the average household. The employer maintained no retail stores, but made its sales through salesmen who were under written contract to employer. Some sales were made on credit and some for cash. The employees furnished their own automobiles and were paid a higher commission when their automobiles were so used.

No territorial limitation was placed on the employee as to where he might sell for cash, but such limitation was made where credit sales were permitted. The salesmen did not collect after a credit sale was made. A designated collector employed by the employer worked in conjunction with the salesmen and in territories where there was no designated collector the salesmen were not permitted to sell on credit. The salesmen carried their stock of merchandise in their automobiles and replenished same from time to time from the company's warehouse as a new supply was needed.

The arrangement is briefly stated in the appellant's brief as follows: "Employee was under written contract of employment. This contract provided for designation of her credit territory, and she could sell for cash anywhere."

On the day of her injury, Mrs. Stewart, who resided in Abilene, was an employee of the company, working under the terms of the contract referred to. She had an unmarried son living at her home with her and on this particular day (March 22) he decided to go to Anson and Stamford and see if he could buy a second-hand car. He obtained consent from his mother to use her car, which was the one that she used in selling her employer's goods. When engaged in marketing the goods she loaded a certain quantity of the same in her car from the warehouse or storage of her employer. In granting her son the use of the car she also concluded to go with him and undertake to sell her line of merchandise while he was making a car deal in which she was not interested. Consequently, she loaded her merchandise into the car and accompanied her son to Anson and Stamford, at which latter place she contacted a prospect whom she had theretofore known and to whom she had sold her employer's goods on other occasions. On this particular trip she failed to make any sales, principally because her employer at that time maintained no credit man in that territory (a fact of which she was not aware until she reached Stamford) and she was unable by reason of the company's rules to make a credit sale under such circumstances.

On the way home to Abilene, and while approximately 20 miles therefrom, she was involved in an accident or collision with another car and sustained the injuries which form the basis of this lawsuit.

This appeal hinges essentially on the question of whether or not Mrs. Stewart was in the course of her employment at the time of the receipt of her injuries. The attorneys stipulate that the evidence amply supports the jury's verdict as to the extent of Mrs. Stewart's disability, and that feature of the case calls for no further consideration.

The judgment on the verdict is attacked under various points and for the following reasons:

By points 1 and 2, respectively, the appellant contends that the court erred (1) in overruling its motion for an instructed verdict, and (2) in overruling its motion for judgment non obstante veredicto. These contentions mean that there is no evidence in the record to support the material issues submitted to the jury. The propositions are overruled for the reason that the evidence supports a contrary conclusion. A directed verdict would not have been proper and hence neither proposition is sustainable. The testimony relevant to these contentions has been carefully considered in the light of the authorities cited by the appellant, but we do not deem it necessary to make an extended statement of either the facts or the law applicable to these points.

By point 3 the appellant insists that "because the evidence showed she [Mrs. Stewart] was on a personal mission" the trial court erred in submitting special issue No. 2 inquiring whether or not Mrs. Stewart was in the course of her...