Meyer v. Western Fire Insurance Company

• Decision Date: 13 March 1968
• Docket Number: No. B--519,B--519
• Parties: F. J. P. MEYER, Petitioner, v. WESTERN FIRE INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 628

425 S.W.2d 628

F. J. P. MEYER, Petitioner, v. WESTERN FIRE INSURANCE COMPANY, Respondent.

No. B--519.

Supreme Court of Texas.

March 13, 1968.

John S. Wade, Austin, for petitioner.

Brown, Sparks, Erwin, Maroney & Barber, Will Barber and Michael T. Johnson, Austin, for respondent.

GREENHILL, Justice.

This is a workmen's compensation case involving the statute dealing with the use of automobiles by employees. The plaintiff was injured in an automobile accident in Austin, Texas, and sought compensation. The question is whether the plaintiff was, under the statute, within the scope of his employment when he was injured. Reduced to its simplest terms, the problem is whether he was already working, or was simply on his way to work, at the time of the accident. The trial court entered a summary judgment for the defendant insurance company, holding that as a matter of law the plaintiff was not within the scope of his employment; i.e., he had not begun to work for his employer within the terms of the statute. The Court of Civil Appeals, by a divided court, affirmed. 418 S.W.2d 318. The plaintiff is here contending that there is an issue of fact as to whether he was acting in the scope of his employment.

The only proof presented on the motion for summary judgment was the deposition of plaintiff Meyer. He testified that he was employed as a service supervisor by a home builder. He worked irregular hours, partly at home, partly at his employer's office, and partly in making service calls and inspections of the various homes built by his employer. He made simple repairs himself, but his usual job was to send out repairmen to correct problems after he had received complaints or made inspections. He was given discretion, except upon emergency calls from his employer's office, to determine when and where to make service calls for his employer. He was supposed to exercise his own judgment in these matters. He furnished his own transportation, and his means of transportation was not paid for or controlled by his employer. His duties did not require him to report to the office daily or at any particular time. Although he 'liked to get by' the office once a day to pick up messages, he did not always do so. He did not have a desk at his employer's office, and he usually received complaints and did his required paper work at his home.

On the day of the automobile accident and resulting injury, Meyer began the working day at home by taking two business telephone calls from Fairview Addition homeowners and completing some paper work in preparation for a meeting at the office that afternoon. He testified in his deposition that he then left his home to make service calls in a subdivision in Northeast Austin. Although he was not required to report to his employer's office that morning and had no duties to perform there, he decided to drive by the office on his way to the subdivision to determine whether there were any messages relating to service calls in Northeast Austin, so that he could perform all his work in that area at one time. The automobile collision occurred before he reached his employer's office, and on the usual and customary route between Meyer's home and the office.

Article 8309 § 1b of our workmen's compensation statute, ¹ quoted below, precludes of compensation for injuries received in the course of transportation or travel, unless the conditions of that statute are met:

'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, 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.'

Although the general rule is that injuries sustained by a worker while traveling on the public streets or highways are not incurred in the course of employment, an exception to this general rule is when an injury occurs when the worker is traveling on the public streets or highways pursuant to express or implied conditions of his employment contract. Jecker v. Western Alliance Insurance Co., 369 S.W.2d 776 (Tex.Sup.1963); Smith v. Texas Employers' Insurance Association, 129 Tex. 573, 105 S.W.2d 192 (1937).

In...