Shelton v. Standard Ins. Co.

• Decision Date: 31 March 1965
• Docket Number: No. A-10370,A-10370
• Citation: 389 S.W.2d 290
• Parties: Jimmy SHELTON, Petitioner, v. STANDARD INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 290

389 S.W.2d 290

Jimmy SHELTON, Petitioner, v. STANDARD INSURANCE COMPANY, Respondent.

No. A-10370.

Supreme Court of Texas.

March 31, 1965.

Rehearing Denied May 5, 1965.

Schulz & Hanna, Yates & Yates, Abilene, for petitioner.

Burford, Ryburn & Ford, Spencer C. Relyea, III, Dallas, for respondent.

WALKER, Justice.

This is a workmen's compensation case. Jimmy Shelton, petitioner, was struck by an automobile while crossing the street from the motel where he was staying in Dallas to a cafe for the purpose of obtaining something to eat. The principal question to be decided is whether he was injured in the course of his employment within the meaning of our statute. Standard Insurance Company, respondent, moved for summary judgment in the trial court on two independent grounds, asserting that the uncontroverted facts establish as a matter of law: (1) that petitioner was an independent contractor rather than an employee at the time he was injured; and (2) that he was not injured in the course of his employment. The trial court granted this motion without specifying the basis of its action, and the Court of Civil Appeals affirmed. 381 S.W.2d 356.

Petitioner is met at the outset by respondent's contention that the judgment of the trial court must be affirmed because it rests upon an independent ground which cannot now be questioned. Each of the two grounds urged in support of the motion for summary judgment was properly attacked by petitioner's brief in the Court of Civil Appeals. The intermediate court first discussed and overruled the points of error dealing with the course of employment problem. It then disposed of petitioner's remaining point as follows:

'Appellant's third point alleges that a fact question exists as to whether appellant was an employee or an independent contractor. We agree with oppellant. However, since we have held that appellant was not within the course of his employment when he was injured, the third point becomes immaterial even if it were established that appellant was an employee. Therefore the third point will be overruled.' (Emphasis supplied)

Since petitioner did not contend in his motion for rehearing in the Court of Civil Appeals and does not say here that the intermediate court erred in overruling his third point of error, respondent insists that the case is governed by City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77. We do not agree. When the Court of Civil Appeals stated that the third point was being overruled, it obviously meant only that the point afforded no basis for reversing the judgment of the trial court which was supported by another ground already determined to be sound. The court clearly held with petitioner that there is a fact question as to whether he was an employee or an independent contractor, and petitioner was not required to assign error to the 'overruling' of his third point. We agree with the Court of Civil Appeals that the record does not establish as a matter of law that petitioner was an independent contractor rather than an employee, and this brings us to the course of employment question.

There is no dispute as to the material facts. Master Corporation of Texas was moving its business from Wichita, Kansas, to Abilene, Texas. The company transported its equipment in trucks leased from Ryder Truck Rentals of Dallas, and arranged for petitioner to drive a truck from Abilene to Wichita and return. He was paid $40.00 per trip plus expenses, and had made the round trip three time before he was injured. The total time required for each trip was about 33 hours, and it was necessary for petitioner to sleep and eat en route. Petitioner left Abilene on the fourth trip driving an International truck with flatbed trailer, which he was instructed to exchange in Dallas for a van-type truck before proceeding to Wichita. The truck developed battery trouble shortly after leaving Abilene, and petitioner finally reached Dallas about 8:30 o'clock at night. He turned the truck in at the Ryder Truck Rentals, and was informed that the truck he was to drive to Wichita would not be available until the following morning. The son of Ryder's manager showed him where to pick up the second truck and then drove him to a motel. Petitioner checked in at the motel, took a shower, changed his clothes, and started across the street to a cafe to get something to eat. While crossing the street he was struck by an automobile and received the injuries which are the basis of him compensation claim.

Section 1 of Article 8309, Vernon's Ann.Tex.Civ.Stat., provides that the term 'injury sustained in the course of employment' shall include, subject to certain exceptions not material here, all '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.' It is well settled that the requirements of this statute are not satisfied by proof that injury occurred while the workman was engaged in or about the furtherance of his employer's affairs or business. The claimant must also establish 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. See Texas General Indemnity Co. v. Bottom, Tex.Sup., 365 S.W.2d 350, and authorities there cited.

The statute has been considered in a number of cases involving injuries received while the claimant was going to or returning from his place of employment, and its application in that situation is reasonably well charted by the decisions. As a general rule an injury incurred in the use of public streets and highways for that purpose is not compensable, but there are several well-recognized exceptions to the general rule. See Jecker v. Western Alliance Insurance Co., Tex.Sup., 369 S.W.2d 776; American General Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370; Smith v. Texas Employers' Ins. Ass'n., 129 Tex. 573, 105 S.W.2d 192. When an ordinary workman who lives at home and works at a fixed location is injured while going to or returning from work, his presence at the place of injury is causally related to the employment. The services for which he is employed cannot be performed unless he goes regularly to the place where the work is to be done, and in that sense he furthers the affairs or business of his employer by making the journey. The problem in each case is to determine whether the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.

While this is not a 'going to or returning from' case, the problem here is essentially the same. Petitioner was furthering the affairs of his employer by going to Dallas and also by spending the night and eating there so as to be ready to continue his trip the...