State, Texas Dept. of Human Services v. Penn

• Decision Date: 08 February 1990
• Docket Number: No. 09-88-306,09-88-306
• Citation: 786 S.W.2d 28
• Parties: STATE of Texas, TEXAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. Michelle Renee PENN, et al., Appellee. CV.
• Court: Texas Court of Appeals

Page 28

786 S.W.2d 28

STATE of Texas, TEXAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. Michelle Renee PENN, et al., Appellee.

No. 09-88-306 CV.

Court of Appeals of Texas Beaumont.

Feb. 8, 1990.

Rehearing Denied March 14, 1990.

As Corrected Feb. 22, 1990.

Jack W. Smith, Asst. Atty. Gen., Austin, for appellant.

John H. Seale, Seale, Stover, Coffield, Gatlin & Bisbey, Jasper, for appellee.

OPINION

WALKER, Chief Justice.

This appeal stems from a judgment in a civil action. Appellee initiated the suit claiming entitlement to worker's compensation death benefits. The decedent, Barbara Jean Penn, was seriously injured in a traffic accident on June 25, 1987 at approximately 8:00 a.m. Ms. Penn died of her injuries on July 8, 1987. The appellee is one of her two surviving minor children. At the time of the accident, Ms. Penn was in her personal automobile, taking her usual route to her place of employment, the Department of Human Services Office in Kirbyville, Texas. The only issue submitted to the jury was whether or not the injury sustained by Ms. Penn occurred "in the course of her employment for the Texas Department of Human Services?" The only explanatory material provided to the jury was as follows:

" 'Injury in the course of employment' means any injury having to do with and originating in 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.

An injury occurring during the course of transportation is not in the course of employment, unless:

(1) the transportation is furnished as a part of the contract of employment or is paid for by the employer; or

(2) the employee is authorized, expressly or impliedly, by his employment contract to travel in the performance of his duties, and the injury occurred while he was so traveling."

The jury found for the appellee and the trial court entered judgment according to the verdict.

At the outset, we take note of the fact that appellant does not take exception to the form or content of the issue submitted to the jury. It appears that the proper standard of law was applied by the trial court. Appellant presents five points of error for consideration, four of which deal with sufficiency of the evidence. We feel that answering the first three points will preclude the need to answer the fourth or fifth.

Appellant groups its first three points of error together essentially arguing that there was no evidence to sustain the appellee's burden of proof, no evidence to support the jury's verdict, and no evidence to support the jury finding that Ms. Penn was "injured in the course of her employment".

In examining assertions of "no evidence", we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. If there is any evidence of probative force to support the jury's finding, the point of error must be overruled and the finding upheld. International Armament Corp. v. King, 686 S.W.2d 595 (Tex.1985); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Callisburg Independent School District v. Favors, 695 S.W.2d 370 (Tex.App.--Ft. Worth 1985, writ ref'd. n.r.e.).

"No evidence" points of error may only be sustained when the record indicates one of the following: (1) a complete absence of evidence of a vital fact; (2) the trial court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; (4) the evidence establishes conclusively the opposite of a vital fact. Callisburg, supra, at 371; Royal Indem. Co. v. Little Joe's Catfish Inn, 636 S.W.2d 530 (Tex.App.--San Antonio 1982, no writ); Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L.Rev. 361 (1960).

Mindful of the above cited standards for review, we now consider the evidence presented at trial interwoven with the issue as it was framed for the jury. We must find somewhere in the probative evidence either exception to the general rule set out in the Worker's Compensation law that an injury occurring during the course of transportation is not in the course of employment. TEX.REV.CIV.STAT.ANN., art. 8309, sec. 1b (Vernon 1967). We take note of the fact that there was no formal employment contract admitted into evidence by either party. Furthermore, transportation was not provided by Ms. Penn's employer. The rules and regulations regarding travel reimbursement for Texas Department of Human Services employees were introduced into evidence. They provide for no reimbursement for travel between an employee's home and the place of employment; and to be eligible for reimbursement at all, mileage must begin and end at the employee's place of employment. (Emphasis added). The only exception to the above rule is if mileage from the employee's home would be less than or equal to mileage from the place of employment. Ms. Penn's transportation was paid for by her employer, but only to the extent she was eligible based on the above rules. Ms. Penn's supervisor, Ms. Newton, testified that Ms. Penn would not have been reimbursed for her drive into the Kirbyville office on June 25 had the accident not occurred. This was true despite the fact that Ms. Penn had a client waiting to meet with her at the Kirbyville office. According to Ms. Newton, even if the interview had been considered an "emergency" situation and Ms. Penn had been called at her home to meet the client at the office at eight a.m., Ms. Penn still would not have been reimbursed for the drive to the office. Ms. Penn's assigned work hours were from eight a.m. to five p.m., Monday through Friday. Any travelling during these "normal working hours" between home and office was not subject to reimbursement. The only evidence seemingly to the contrary were four incidents in which Ms. Penn left her home to interview a client and was reimbursed. However, the facts of the four incidents fell within recognized exceptions. None of the incidents occurred during normal business hours; two occurred on weekends, one call was at 11:15 p.m., and one call was at 1:00 a.m. There is, therefore, a complete lack of evidence to show that the Texas Department of Human Services considers employee travel from home to office during normal business hours a travel expense subject to reimbursement. As such, Ms. Penn's drive to the office on June 25, 1987 was not "transportation paid for by the employer" for art. 8309, sec. 1b purposes.

Appellee's only other hope was grounded in the second exception in art. 8309, sec. 1b; that being that Ms. Penn's employment contract expressly or impliedly authorized her to travel in the performance of her duties, and the injury occurred while she was so traveling. As stated before, no employment contract was entered into evidence. It is undisputed that Ms. Penn's employment was contingent on her ability to...