Southern Casualty Co. v. Ehlers

• Decision Date: 23 January 1929
• Docket Number: (No. 8115.)
• Citation: 14 S.W.2d 111
• Parties: SOUTHERN CASUALTY CO. v. EHLERS.
• Court: Texas Court of Appeals

14 S.W.2d 111

SOUTHERN CASUALTY CO. v. EHLERS.

(No. 8115.)

Court of Civil Appeals of Texas. San Antonio.

January 23, 1929.

Rehearing Denied March 6, 1929.

Appeal from District Court, Bee County; T. M. Cox, Judge.

Proceeding under the Workmen's Compensation Act by Charles Ehlers, claimant and employee, opposed by the Southern Casualty Company, as insurer of Jackson Motor Company, employer. Order of the State Industrial Accident Board denying an award was reversed by the district court, which awarded claimant compensation, and the insurer appeals. Reversed and remanded.

Eskridge & Williams, of San Antonio, and Chas. Troy, of Beeville, for appellant.

J. C. Dougherty and G. C. Robinson, both of Beeville, for appellee.

SMITH, J.

The appeal presents the question of whether or not the injuries for which appellee recovered compensation were sustained in the "course of his employment," as contemplated in the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309).

Appellee was a young unmarried man, residing with his parents in the village of Orange Grove. He was in the employment of the Jackson Motor Company at Sinton, as an automobile salesman, in an undefined territory in San Patricia and nearby counties. He was under no restrictions as to the time, place, or manner of doing the work for which he was employed, seeking customers when and where and as he pleased, and making his sales and deliveries with like freedom of action.

Appellee had effected the sale of two trucks to customers residing in or near Orange Grove. He went to Sinton, obtained the two trucks from his employer, and with other drivers, set out to deliver them on April 19, 1926. The trip from Sinton was slow, so that they reached Orange Grove too late to make deliveries on that day. One of the trucks was left at appellee's home for the night, and the other at a nearby filling station, to be delivered by appellee to the purchasers, probably on the next day. That night a dance was given at Skidmore, another town 22 miles from Orange Grove, and appellee attended the dance in accordance with his habit of attending such functions whenever they occurred within his reach. He attended this dance, however, with the additional purpose of making sales, if possible, to two "prospects" in Skidmore. He drove to Skidmore in his coupé, which he used for demonstration purposes. He found the prospects, drove around the community with one of them, demonstrating his car, until about 10:30, finishing up at the place of the dance. There he met the other prospect, and tried to make a sale to him. This interview ended at about 11 o'clock, and then appellee devoted the remainder of his time to the pleasures of the occasion until the dance ended at midnight, or a little later. He then set out for his home at Orange Grove, accompanied in his car by a friend. On the way home his car collided with an apparently abandoned "trailer" of another car, and appellee was seriously injured. Subsequently he made claim, before the State Industrial Accident Board, for compensation, against appellant, with whom appellee's employer was insured, under the provisions of the Workmen's Compensation Act. The board denied the claim, upon the ground that appellee's injuries did not occur in the course of his employment. Appellee then carried his claim into the district court, in which he was awarded compensation, that court holding that he was injured in the course of his employment, and that one question now confronts this court for decision through the appeal of the insuring casualty company.

It must be conceded that appellee was well within the course of his employment while going from his home at Orange Grove to the place of the dance at Skidmore, and until he had completed his interview with the two prospects encountered there. It is equally clear that if, at the end of those interviews, he had gotten in his car and gone on back to Orange Grove, and there completed delivery of the trucks parked earlier in the night, without in the meantime stepping aside to do other things not connected with his employment, the scope of his employment would have encompassed him throughout the period in which he would have been so employed, and any injury sustained by him during such period would have been compensable.

But this course is hypothetical; it was interrupted by an actual event, and a contrary purpose, which was itself interrupted by the accident. For, instead of directly proceeding to Orange Grove and resuming delivery of the trucks, he stepped aside from that course and engaged in the dance for the period of about an hour, and then departed for Orange Grove, not for the purpose of resuming without further interruption the delivery of the trucks he had sold, but to get a night's repose. In this connection appellee makes the contention that there is no evidence that when he set out for Orange Grove it was not with the purpose of proceeding at once to the task of delivering the trucks. But there is nothing to this contention, for it is undisputed that he suspended delivery of the trucks upon arrival with those vehicles at Orange Grove, for the reason that he arrived there with them at sundown, too late for delivery that day, and accordingly he parked them for the night with the intention to deliver the next day. It becomes a matter of course that, if the hour of sundown was too late for delivery that day, then 1 o'clock at night would also be too late for that purpose.

So the problem is narrowed to the question of whether the course of appellee's employment was effectually interrupted, within the contemplation of the law, by his stepping aside to spend an hour at the dance, and by the intention of proceeding thence to Orange Grove with the immediate purpose of spending the balance of the night at rest in his home before resuming the activities of his employment.

The question of whether or not appellee was injured in the course of his employment was submitted to the jury through a special issue in which they were required to say if appellee, at the time of the accident, was "engaged in the performance of his duties as an employee of the" subscriber. In submitting this issue, the court instructed the jury as follows:

"In connection with the above issues you are instructed that, if, prior to said accident, Charles...