Pennsylvania National Mutual Cas. Ins. Co. v. Nathan

• Decision Date: 17 May 1966
• Docket Number: No. 22789.,22789.
• Citation: 361 F.2d 18
• Parties: PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. Gerald NATHAN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

361 F.2d 18 (1966)

PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. Gerald NATHAN, Appellee.

No. 22789.

United States Court of Appeals Fifth Circuit.

May 17, 1966.

L. W. Anderson, Dallas, Tex., for appellant.

David M. Kendall, Jr., Dallas, Tex., Robert P. Woodruff and Woodruff, Hill, Bader & Kendall, Dallas, Tex., of counsel, for appellee.

Before HUTCHESON and BELL, Circuit Judges, and FULTON, District Judge.

HUTCHESON, Circuit Judge:

This appeal is from a judgment awarding Gerald Nathan workmen's compensation benefits under the Texas Workmen's Compensation Act.¹ The question presented is whether the automobile accident in which Nathan sustained his injuries is within the coverage of the Texas Act. Upon a jury verdict answering this question affirmatively, the district court entered judgment for Nathan. In complete agreement with that judgment, we affirm.

At the time of his injury Nathan was employed by Nardis Sportswear, a Dallas, Texas clothing manufacturer. Nathan was hired in Dallas in March, 1964, as a traveling salesman and assigned a territory consisting of Arkansas, Kentucky, Mississippi, Tennessee, and Alabama. Immediately upon employment he entered a training program in Dallas, which lasted several weeks. Upon completion of the training program Nathan left Dallas to begin his duties in his five-state territory. However, Nathan remained under the general supervision of the Dallas office, and in fact was required to return to Dallas for markets held four times during each year.

Nardis directed Nathan to return to Dallas for one such market on May 25, 1964. He was then directed to resume his duties in Gulfport, Mississippi, and left Dallas on May 30 enroute to Gulfport. In making this trip Nathan went by way of New Orleans, although a possibly shorter and easier route, which would have avoided New Orleans, existed; at the trial it was suggested that Nathan went by way of New Orleans to visit his children, who lived there with his ex-wife. While on this trip the accident resulting in Nathan's injuries occurred on the outskirts of New Orleans.

Nathan claimed workmen's compensation under the Texas Act from appellant Pennsylvania National Mutual Casualty Insurance Company, Nardis' compensation carrier. Pennsylvania asserted that Nathan was not entitled to benefits under the Texas Act on two grounds: (1) because Nathan deviated from the "normal" route from Dallas to Gulfport for a personal purpose, he was outside the scope of his employment at the time of the accident; and (2) since Nathan was hired to work only in the states other than Texas, he was not a "Texas employee" and therefore was not entitled to the extraterritorial coverage of the Act.

The case was tried before a jury and submitted on special interrogatories which, among other things, specifically inquired about, and instructed with regard to, the above-stated defenses. Pennsylvania did not request a directed verdict under Fed.R.Civ.P. 50(a). Upon a jury verdict favorable to Nathan, Pennsylvania moved for judgment notwithstanding the verdict. The district court, we think quite properly, overruled this motion and entered judgment for Nathan.

In the present posture of this case, we need say very little in disposing of Pennsylvania's arguments. The main thrust of these arguments is that the jury's verdict is against the great weight, if not all, of the evidence. Because Pennsylvania did not seek a directed verdict in the court below, we need not consider whether the evidence is legally sufficient to support the jury's factual findings. As we have said time and again, "When a party allows a case to go to the jury without challenging the sufficiency of the evidence by a motion for a directed verdict, the appellate court is powerless to review the sufficiency of the evidence to support the verdict." Pruett v. Marshall, 283 F.2d 436, 438 (5th Cir. 1960)²

But the disposition of Pennsylvania's arguments need not rest on the procedural ground alone. Under the overwhelming weight of Texas authority, the facts of this case are entirely sufficient to support the jury's findings that Nathan was acting within the scope of his employment³ and was a "Texas employee"⁴ at the time of the accident. Questions of this sort are particularly well suited for determination by a jury, and we refuse to disturb the jury's findings.

We have considered Pennsylvania's complaints regarding the district court's refusal to submit additional issues inquiring of "scope of employment" and "Texas employee". The issues and instructions upon which the court submitted the case to the jury completely and adequately presented all matters raised by Pennsylvania. As the requested issues would have duplicated and overlapped those used, the court quite properly refused the additional issues preferred by Pennsylvania. Reagan v. Sinclair Ref. Co., 319 F.2d 363, 366 (5th Cir. 1963), cert. denied, 376 U.S. 956, 84 S.Ct. 975, 11 L.Ed.2d 974 (1964).

Affirmed.

1 Tex.Rev.Civ.Stat.Ann. arts. 8306-8309f (1956).

2 Accord, Powers v. Gilmore, 297 F.2d 138, 140 (5th Cir. 1961); Bearden v. United States, 271 F.2d 708 (5th Cir. 1959); Williams v. National Sur. Corp., 257 F.2d 771, 774 (5th Cir. 1958); Stokes v. Continental Assur. Co., 242 F.2d 893, 894 (5th Cir. 1957), cert. denied, 355 U.S. 890, 78 S.Ct. 263, 2 L.Ed.2d 189 (1957), and the many cases there cited and reviewed. See also Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129, 132 (3d Cir. 1965); Tsai v....