North River Insurance Company v. Hubbard

• Decision Date: 19 March 1968
• Docket Number: No. 24448.,24448.
• Citation: 391 F.2d 863
• Parties: NORTH RIVER INSURANCE COMPANY, Appellant, v. John Ramey HUBBARD, Jr., et ux., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.2d 863 (1968)

NORTH RIVER INSURANCE COMPANY, Appellant, v.John Ramey HUBBARD, Jr., et ux., Appellees.

No. 24448.

United States Court of Appeals Fifth Circuit.

March 19, 1968.

John E. Gunter, Midland, Tex., Rassman, Gunter & Boldrick, Midland, Tex., of counsel, for appellant.

Warren Burnett, Robert E. Hoblit, Odessa, Tex., for appellees.

Before RIVES, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

Again we consider whether for purposes of workmen's compensation an employee was injured "in the course of employment."Specifically, was John Ramey Hubbard, III acting "in the course of employment" when he was killed in an automobile accident while driving from his former home in Albuquerque, New Mexico, to Midland, Texas, in order to establish a residence and to work for the McClatchy Cleaners in Midland?The trial court overruled the appellant's motion for a directed verdict and submitted this question to a jury.After the jury had answered in the affirmative, the trial court overruled the appellant's motion for a judgment notwithstanding the verdict and awarded recovery to the Hubbard family.The appellant claims error in the trial court's actions.Having correlated the facts of this case with the Texas Workmen's Compensation Law — and having borrowed one case from the jurisprudence of a sister state¹ — we affirm.

The McClatchy Cleaners was owned by Mrs. Mary C. Nelson, whose daughter Mary Jo was young Hubbard's fiancee.In the early part of December, 1964, John was dismissed from his job in Albuquerque.Mrs. Nelson mentioned to John that she was having trouble with her route salesman and that she would like him to work for her.She also sent him $100 to "get some clothes and fix his car" in addition to a $25 Christmas gift.On January 22, 1965, the Friday evening before John's death, Mrs. Nelson talked with John and John's mother, and all agreed that John would become a route salesman for McClatchy Cleaners and that he would leave for Midland as soon as his car was ready for the trip.The following testimony by John's mother relates her version of the conversation:²

"Well, I asked Mrs. Nelson, as I knew her then Mrs. Nelson had remarried by the time of the trial, what would be going on down here about his salary and how he would work.She told me he was hired from the time he left Albuquerque; that she would pay him $100.00 a week and she said the $100.00 she advanced to him to buy him some clothes and fix his car would have to be paid back, but that was an advancement on his salary and that is what I understood it to be.

* * * * * *

"He John said if he got his car out of the shop — he got it out of the paint shop Sunday night — he would leave Monday.

* * * * * *

"She told him that she would like to have him there as soon as possible, but no later than Wednesday."(Emphasis added.)

At trial Mrs. Nelson, who quite obviously had become disenchanted with the Hubbards because of the litigation, denied that Hubbard was to be "hired" before he arrived in Midland.She, nevertheless, admitted that Hubbard was to replace a route salesman who was "driving me crazy" and that "in all probability"she would have paid Hubbard a full week's salary on the Saturday following his arrival.

Without doubt, in our Circuit the sufficiency of evidence for jury submission is measured by federal standards even in diversity cases.Cater v. Gordon Transport, Inc., 5 Cir.1968, 390 F.2d 44;Planters Manuf. Co. v. Protection Mut. Ins. Co., 5 Cir.1967, 380 F.2d 869, 871, cert. den., 389 U.S. 930, 88 S.Ct. 293, 19 L.Ed.2d 282;Revlon Inc. v. Buchanan, 5 Cir.1959, 271 F.2d 795, 800, 81 A.L.R.2d 222.Our court has in recent years discussed the quantum and quality of evidence which justifies the submission of a case to the jury.CompareBoeing Co. v. Shipman, 389 F.2d 507; 5 Cir. January 11, 1968, and Planters Manuf. Co. v. Protection Mut. Ins. Co., supra, with Cater v. Gordon Transport, Inc., supra;Isaacs v. American Petrofina, 5 Cir.1966, 368 F.2d 193, 195-96;Employers Mut. Cas. Co. v. Mosqueda, 5 Cir.1963, 317 F.2d 609, 613.³Even the formulations advanced by the latter, more restrictive cases, however, entitle the appellees in this case to a jury evaluation.Therefore, we can reverse only if, as a matter of law, Hubbard could not have been "in the course of employment" while on a public highway between Albuquerque and Midland.The jury is the weigher of facts; we must determine whether the facts were too nebulous to weigh.

Our statutory guides are Tex.Rev.Civ. Stat. Art. 8309, Sec. 1 and Art. 8309, Sec. 1b.Section 1 contains Texas' general definition of an "injury sustained in the course of employment":

"The term `injury sustained in the course of employment,\' as used in this Act, * * * shall include all other referring to four exceptions not relevant here injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer\'s premises or elsewhere."

Section 1b was enacted in 1957 to lend statutory assistance to the increasing case law on employee travel:

"Transportation or travel as basis for claim for injury

Sec. 1b.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 place, 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."

The judicial tests under Section 1 have remained constant for more than forty years.To recover for an injury, the employee must show two factors: (1) that at the time of injury he was engaged in or about the furtherance of his employer's affairs or business and (2) that the injury was of a kind and character that had to do with and originated in the employer's work, business, trade or profession.Shelton v. Standard Ins. Co., Tex.1965, 389 S.W. 290, 292(at 2);Texas General Indemnity Co. v. Bottom, Tex.1963, 365 S.W.2d 350, 352-353(at 1);Smith v. Texas Employer's Ins. Ass'n, Tex.Comm'n App.1937, 129 Tex. 573, 105 S.W.2d 192, 193(at 1)(opinion adopted by Tex.Sup. Ct.);Texas Indemnity Ins. Co. v. Clark, Tex.Comm'n App.1935, 125 Tex. 96, 81 S.W.2d 67, 69(at 2)(opinion adopted by Tex.Sup.Ct.);Aetna Life Ins. Co. v. Burnett, Tex.Conn'nApp.1926, 283 S.W. 783, 784(at 1)(opinion adopted by Tex.Sup.Ct.);Liberty Mut. Ins. Co. v. Preston, Tex.Civ.App.1966, 399 S.W. 2d 367, 372(at 10), error ref., n. r. e.

We viewSection 1b as a reconciliation of the Section 1 tests with the special problems of travel risks.In Texas, as in all jurisdictions, the two following common law rules of compensation have proven to be less than harmonious: (1) Injuries received while using the public highways in going to and coming from work are not compensable under workmen's compensation acts because all members of the traveling public take such risks.Texas General Indemnity Co. v. Bottom, supra, 365 S.W.2d at 353, (2) Workmen's compensation statutes should be construed liberally to carry out their evident purpose.Shelton v. Standard Ins. Co., supra, 389 S.W.2d at 293.In 1953 the Texas Legislature seemingly saw in the general terms of Section 1 and in the above two philosophical guides a potential for misuse of interpretative imagination, whether in awarding recovery or in denying it.Thus, they enacted Section 1b to restrict judicial analysis to travel-oriented standards.⁴The Texas Supreme Court has stated, Section 1b"circumscribes the probative effect that might be given to the means of transportation or the purpose of the journey."Texas General Indemnity Co. v. Bottom, Tex.1963, 365 S.W.2d 350, 353.That Court's analysis of Section 1b requirements was stated by Chief Justice Calvert in Janak v. Texas Emp. Ins. Ass'n, Tex.1964, 381 S.W.2d 176, 179:

"Sec. 1b, Article 8309, enacted in 1957, has two parts.The first part declares injuries during travel to be in the course of employment, and therefore compensable, only when transportation is (1) furnished as a part of the contract of employment, or (2) is paid for by the employer, or (3) is under the control of the employer, or (4) when `the employee is directed in his employment to proceed from one place to another place.\' The second part deals with the `dual purpose\' rule.It declares that injuries occurring during travel for the dual purpose of furthering the affairs or business of the employer and of furthering the employee\'s personal or private affairs shall not be deemed in the course of employment, and therefore compensable, `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.\'"

This analysis was quoted in part in Agricultural Ins. Co. v. Dryden, Tex.1965, 398 S.W.2d 745, 746.See alsoLiberty Mutual Ins. Co. v. Preston, Tex. Civ.App.1966, 399...