Texas Emp. Ins. Ass'n v. Chunn

• Court: Texas Civil Court of Appeals
• Writing for the Court: COLLINGS
• Citation: Texas Emp. Ins. Ass'n v. Chunn, 274 S.W.2d 939 (Tex. Ct. App. 1955)
• Decision Date: 14 January 1955
• Docket Number: No. 3104,3104
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Mrs. G. P. CHUNN, Appellee.

Page 939

274 S.W.2d 939

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Mrs. G. P. CHUNN, Appellee.

No. 3104.

Court of Civil Appeals of Texas, Eastland.

Jan. 14, 1955.

Rehearing Denied Feb. 11, 1955.

Turpin, Kerr & Smith, Midland, for appellant.

J. Ray Martin, Snyder, for appellee.

COLLINGS, Justice.

This is a workmen's compensation case. Mrs. G. P. Chunn, individually and as guardian of her minor children, brought suit against Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board and to recover benefits provided under the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., for the death of her husband, G. P. Chunn. It was alleged by plaintiff that her husband was an employee of Morris & Blount Tool Company for which appellant carried workmen's compensation insurance; that while in the course of his employment with said company, her husband lost his life in an automobile accident about eight miles north of Big Spring, Texas, on August 8, 1952. The trial was before a jury and based upon its answers to special issues, judgment was rendered for the plaintiff for the maximum amount of compensation provided in such cases, discounted to a present lump sum value. Texas Employers' Insurance Association has appealed.

Appellant's first and second points complain of the action of the court in admitting over its objection and in refusing to strike certain claimed hearsay testimony of Mrs. G. P. Chunn, bearing on the question of the course of employment of G. P. Chunn at the time of his death. An ultimate and disputed issue in this case under the pleadings and evidence was whether or not Mr. Chunn's fatal injuries were sustained in the course of his employment for Morris & Blount Tool Company. In response to appellee's request for admission, appellant admitted that Chunn was in the employ of Morris & Blount Tool Company at Snyder prior to the time of his death; that the company had an office in Midland and pursuant to a request from the Midland office to the Snyder office of the company and upon instructions from C. K. Elder, who was the shop foreman at Snyder, Mr. Chunn went from Snyder to Midland on August 5, 1952, to work at Midland. Appellant further admitted that Morris & Blount agreed to pay Mr. Chunn two hours' time for the trip to Midland and two hours' time for his return trip to Snyder when his, Chunn's, job was completed in Midland, but denied that the company agreed to pay him any time or furnish gasoline or compensation for any kind of trips between Midland and Snyder before the job he was sent to Midland to do was completed. Appellant admitted that Chunn was paid two hours' time for his trip from Snyder to Midland on August 5th; that he worked in Midland at the office of the company on August 6th, 7th and 8th, 1952; that on August 8th the work that Chunn had come to Midland to do could not be completed that day, due to the unavailability of parts, and Chunn was given permission to leave the premises of Morris & Blount Tool Company at approximately 4:28 P.M. on August 8, 1952. Appellant admitted that Chunn sustained accidental personal injuries on August 8, 1952, while enroute in an automobile from Midland to Snyder, when he was involved in a collision about eight miles from Big Spring on the road to Snyder. Appellant denied that Chunn left the Midland shop to return to Snyder in connection with his business for, in behalf of, for the convenience of or benefit of, or in the course of his employment with Morris & Blount Tool Company. Appellant contends that at the time Chunn left Midland for Snyder on the occasion in question, he was on a personal mission which had nothing to do with the business of his employer.

Appellant further admitted that on different occasions prior to August 5, 1952, Chunn had been sent to Midland to work on jobs in Midland; that in accordance with company policy on each of such occasions, Chunn had been furnished gas for his car, and had been paid for two hours at the regular wage of a floor machinist, for time in traveling to Midland and had also been paid for two hours at his regular wage for time in returning from Midland to Snyder in relation to the performance of his work at Midland.

Mrs. Chunn, on direct examination, was permitted to testify concerning a declaration of her husband, made in anticipation of and concurrently with trips made by him from Snyder to Midland covering a period of about six weeks prior to the time of his accidental death. After being asked if on one such occasion Mr. Chunn told her anything about the arrangements for the trip, she testified, over appellant's objection, that her husband told her he 'still got paid for going and coming two hours pay each way.' She was further permitted to testify, over appellant's objection, that on another such occasion when her husband had gone to Midland and worked for about three days and had come home to Snyder and spent the night, and she was with him at the company shop in Snyder when he filled his car with gasoline in preparation for the trip back to Midland to complete a job, that he had stated to her that 'he got that plus two hours road time.' Appellant objected to the above testimony of Mrs. Chunn concerning the statements made to her by her husband on the ground that they were hearsay, irrelevant and immaterial, and further, that there was no showing that Chunn got the gasoline with approval or authority from his employer. Appellee contends that the declarations of G. P. Chunn were not recitals of fact for proof of their truth, but were admissible for the purpose of showing his state of mind, plans, and intentions in connection with matters actually being done at the time the declarations were made.

As previously noted, the statements by Mr. Chunn concerning which his wife testified, occurred some time during a period of about six weeks prior to his death. They were not declarations by him at the time of and concerning his immediate purpose on...