Texas Emp. Ins. Ass'n v. Dryden
Citation | 612 S.W.2d 223 |
Decision Date | 31 December 1980 |
Docket Number | No. 8564,8564 |
Parties | TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Brenda DRYDEN et al., Appellees. |
Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
John D. Rienstra, Jr., Beaumont, for appellant.
John H. Seale, Jasper, for appellees.
This is a worker's compensation case. Dorman Dryden was killed while he was an employee of Trotti & Thomson, a construction firm. Subsequently, his widow, Brenda, for herself and a minor daughter, Denna, as plaintiffs below, sued Texas Employers' Insurance Association (insurer), defendant below, for death benefits. Plaintiffs were given judgment from which defendant brings this appeal. The parties will be referred to in this opinion as they were below.
Defendant's first two points of error urge there was no, or insufficient, evidence that the deceased was in the course and scope of his employment at the time of his death. We address these points under the guidance of Garza v. Alviar, 395 S.W.2d 821 (Tex.1965)- ; and, In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Defendant cites us Texas Employers Ins. Ass'n v. Page, 553 S.W.2d 98 (Tex.1977), and Smith v. Texas Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192 (1937), for the propositions that for a claimant to recover under the Texas Worker's Compensation Act, he must meet two requirements: First, the injury must have occurred while the claimant was engaged in or about the furtherance of the employer's affairs or business. Second, the claimant must show that the injury was of a kind and character that had to do with or originated in the employer's work, trade, business, or profession. 1 We accept these statements as being correct propositions of law in Texas.
The deceased was referred to as a "field engineer." His wife testified: "Generally he surveyed." The instruments he used belonged to his employer. He was paid a flat salary ($350 a week) plus expenses for his pickup. He was on twenty-four hour call, as well as week-ends. He did not come home for lunch, taking it with him. On the day of his death he was working mainly on the Dowlen Road job. But, he also worked on the job "(o)ff Lawrence Drive," and on another job near Nederland. The deceased was killed in a car accident. If he had been proceeding from the Dowlen job to his home in North Beaumont he would have turned off sooner.
The deceased was a diabetic and gave himself daily insulin injections. These injections would sometimes cause a reaction. He carried candy with him to eat when such a reaction occurred. At the time of his fatal collision, the deceased was on the Eastex Freeway. His employer, Trotti & Thomson, had a construction project underway on the Freeway "that began somewhere around the Lower Neches Valley Canal and ran northward up to approximately where the Texas Highway Department building is."
Mary Oldbury was employed by Trotti & Thomson at the time of decedent's death. She knew the deceased and knew that he was a "field engineer." On the day he was killed, before lunch, she had a conversation with him. She "asked him why he was loading up his truck, and he told me he was going to another job." 2
Marvin L. Thomas, foreman for Trotti & Thomson, knew the deceased and identified his title as "field engineer." He knew that the deceased worked more than one jobsite at a time. So far as the witness knew, the deceased never went home for lunch.
Floyd Moses, General Superintendent for Trotti & Thomson, testified they usually had five or six jobs going at one time; that on occasion he would move the deceased from one job to another. The deceased was killed on the Lawrence Drive job which was about two miles from the Dowlen job. He knew of the deceased doing some work on the Lawrence Drive job sometime before his death.
Harold Deckert, Superintendent for the Lawrence Drive project, knew that at one time the deceased "had come over on our job and set blue top for us." But, on the day of deceased's accident he had not requested his help. He saw Dryden come though the barricade. The collision was "outside the constructive area." "(H)e (the deceased) was just going straight ahead, just in a trance."
Dr. Joe Koch interpreted deceased's blood sample (taken after the collision) as reflecting "a very high insulin level in the blood and a very, very low blood sugar level."
From this evidence we believe the jury could conclude the deceased was on his way to the Lawrence Drive project, which he was authorized to do, when, because of insulin shock, he was involved in a fatal collision. These points of defendant are overruled.
Defendant's last two points of error complain of the court's awarding attorney's fees in a lump sum by taking judicial notice of the so-called "Widow's Pension Table."
We have heretofore written on this subject and cited the authorities we believe gave the trial court this power. See Texas General Indemnity Company v. Billie Dougharty, 606 S.W.2d 725 (Tex.Civ.App. Beaumont 1980, no writ). See also, Texas Emp. Ins. Ass'n v. Clapper, 605 S.W.2d 938, 943 (Tex.Civ.App. Houston (1st Dist.) 1980, no writ):
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