Texas Employers' Ins. Ass'n v. Beach, 2669.

• Decision Date: 25 June 1948
• Docket Number: No. 2669.,2669.
• Citation: 213 S.W.2d 60
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. BEACH et al.
• Court: Texas Court of Appeals

Page 60

213 S.W.2d 60

TEXAS EMPLOYERS' INS. ASS'N v. BEACH et al.

No. 2669.

Court of Civil Appeals of Texas. Eastland.

June 25, 1948.

Rehearing Denied July 28, 1948.

Appeal from District Court, Stephens County; Floyd Jones, Judge.

Suit under the Workman's Compensation Act by the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board in favor of Blanche Beach and another. From a judgment denying relief, the plaintiff appeals.

Judgment reversed and judgment rendered for plaintiff.

McMahon, Springer & Smart, of Abilene, for appellant.

Marshall, King & Rodgers, of Graham, for appellees.

GRISSOM, Chief Justice.

Jesse P. Beach was killed while employed by M. & S. Drilling Company. The employer carried workmen's compensation insurance with Texas Employers' Insurance Association. He was killed in an automobile accident on a public highway between Breckenridge and Graham while he was driving his own automobile and returning to his home from his work in Throckmorton County and transporting three other members of his drilling crew. Judgment, based upon a jury verdict, was rendered for Beach's wife and son against said insurance carrier and it has appealed.

Special issues numbers 1, 2 and 2-A, the court's instructions in connection therewith, and the jury's answers thereto were as follows:

"Special Issue No. 1. Were the fatal injuries, if any, sustained by Jesse P. Beach on February 15, 1947, sustained by him in the course of his employment for the M. & S. Drilling Company? Answer `yes' or `no.' Answer Yes.

"In this connection, you are instructed that the term `injury in course of employment,' as used in this charge, shall include all the injuries of every kind and character, having to do with and originating in the work, business, trade or profession of the employer, received by the employee while engaged in or about the furtherance of the affairs or business of his employer, whether upon the employers premises or elsewhere.

"An injury or death resulting therefrom is not sustained in the course of employment, as that term is defined herein, where same occurs on the public highway while the employee is returning to his home from his place of employment, and at a place removed from the premises of the employer and from the means of ingress and egress to and from said premises, and from a hazard to which the public generally is exposed, and under circumstances in which the employee is not on a mission for his employer, and where the employer does not provide or furnish the means of transportation, has no control over same, and where the employee is not paid compensation for time consumed in going to and from the place of work.

"Special Issue No. 2. Was it the sole purpose or intention of Jesse P. Beach in making the trip in question, on the occasion of, and at the time of his sustaining the said fatal injuries, to take either himself or the three other employees to their homes in Graham? Answer `yes' or `no.' Answer: No.

"Special Issue No. 2-A. Do you find from a preponderance of the evidence that the employer, M. & S. Drilling Company, was compensating the deceased, Jesse P. Beach, at the time of his fatal injury for the use of his automobile, if it was used, in transporting the M. & S. Drilling Company's employees to and from the location of the Blackwell Oil & Gas Company's well in Throckmorton County, Texas? Answer `yes' or `no.' Answer: Yes."

Appellant timely filed a motion for an instructed verdict because the undisputed evidence showed that (1) Beach was injured on a public highway far removed from his employer's premises, or means of ingress or egress thereto, and by a hazard to which the traveling public generally was exposed; (2) that deceased was returning to his home from his place of work in his own automobile under a contract of employment wherein his employer did not pay compensation for the use of deceased's automobile in going to or returning from work; the employer did not provide fuel or repairs for the automobile and deceased did not receive any pay for the time spent by him in going to and returning from his work; (3) that deceased was not then on a mission for his employer; (4) that at said time deceased's employer had no control, or right of control, over the automobile in which deceased was riding, and (5) because there is no evidence establishing, or tending to establish, the contract of employment alleged by plaintiffs, particularly in regard to an alleged requirement of the employer that deceased furnish his car for his own transportation and the transportation of the other three members of his crew to and from their homes to the well; (6) because the undisputed evidence showed deceased was not in the course of his employment; (7) because there was no evidence deceased was within the course of his employment when injured; (8) because there was no evidence deceased sustained an injury which arose out of his employment, and (9) because there was no evidence deceased sustained an injury which originated in the work of deceased under his employment with M. & S. Drilling Company.

Said motion was overruled. After return of a verdict for plaintiff, appellant presented a motion for judgment non obstante veredicto which included the specific reasons stated in its motion for an instructed verdict, said motion was likewise overruled and judgment rendered for claimants.

Appellant's points present the contentions, among others, that the judgment must be reversed and judgment rendered for it because the court erred in overruling appellant's motions for an instructed verdict and for judgment notwithstanding the verdict. It contends the evidence is insufficient to support a finding deceased was killed in the course of his employment and that the record affirmatively shows deceased was not acting in the course of his employment when he was killed.

Relative to the contention that Beach was not acting within the course of his employment when injured, claimants' pleadings and evidence show that the M & S. Drilling Company was engaged in drilling an oil well in Throckmorton County; that its office was in Graham and Beach lived there. That on the day Beach was fatally injured, he had been working on a rig belonging to said company in Throckmorton County, approximately 50 miles from Graham; that Beach had worked on the daylight shift, reporting to work at the well at 7:30 in the morning and stopping work there at 3:30 in the afternoon. On that day he had driven his own automobile and had transported the three other employees on his tower, to the well in the morning and was taking them home after the close of the day's work when his automobile struck a highway post while going around a curve, the car turned over and Beach and another were fatally injured. Beach, and the others of his tower, left the well after 3:30 in the afternoon when another shift or tower took their places, and on their way back to their homes in Graham, they stopped at Breckenridge. They ate at Breckenridge and spent approximately two hours there. They left Breckenridge about 6:45 P.M. The accident occurred about ten miles from Breckenridge on the Graham road at approximately 7:00 P.M.

Claimants' alleged Beach was in the course of his employment because his employer required, according to custom, that he furnish his automobile every fourth day to transport himself and other members of his tower from Graham to the well and back home; that he carry the employer's water can and have his automobile on the well location for the purpose of conveying information, messages and material to and from the rig. Claimants' alleged deceased was within the course of his employment because he was paid for furnishing transportation for himself and the other members of his crew on every fourth day by reason of the fact that his employer took the cost of operating said employee's automobile into consideration in determining the amount of money Beach would be paid for each hour he worked at the well.

Mr. Montfort, one of the owners of the M. & S. Drilling Company, who made the employment contract with Mr. Beach, testified that said company purchased a rig from a Mr. Lancaster in 1946; that deceased was then employed on said rig. Mr. Montfort was not a party to the suit. He was appellees' witness. He was the only witness who testified as to the employment contract between Beach and the M. & S. Drilling Company. With reference to the contract of employment made with Mr. Beach, Mr. Montfort testified:

"Q. All right, Mr. Montfort, will you tell us what your contract of employment with Mr. Beach was? A. Judge, as far as any contract is concerned, we did not have any definite contract. It was merely a statement as to wages, the wages that we would pay and the hours they worked, so many hours a day.

"Q. State what you said to him about pursuing his work in the usual and customary manner, if anything? A. They asked if the wages we would pay, what that would be, and if there would be any changes relative to the towers they worked, and we told them that we would make one change, and that was that Mr. Lancaster had been paying double time on Sunday, and that we would discontinue paying double time on Sundays, and we told them that we would pay ten cents more an hour than Mr. Lancaster had been paying them to offset the double time. There would be no changes in the number of hours they worked on tower, but we would pay them straight time and pay them ten cents more an hour to offset the double time Mr. Lancaster had been paying them for Sundays.

"Q. And did you tell them their duties would be the usual and customary labors in the oil fields? A. Yes, the usual drillers' and roughnecks' labors around the rig.

"Q. And under that statement of affairs as you have outlined, the deceased, Jesse P. Beach, continued to work for you up until the time of his death, did he not? A. Yes, sir.

* * * * * *

"Q. Then it is your...