U.S. Fire Ins. Co. v. Eberstein

• Decision Date: 07 May 1986
• Docket Number: No. 05-85-01081-CV,05-85-01081-CV
• Citation: 711 S.W.2d 355
• Parties: UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Terri Sue EBERSTEIN, Individually and as Next Friend of Leslie Michelle Eberstein and Adrian Elizabeth Eberstein, Minors, Appellees.
• Court: Texas Court of Appeals

Page 355

711 S.W.2d 355

UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Terri Sue EBERSTEIN, Individually and as Next Friend of

Leslie Michelle Eberstein and Adrian Elizabeth

Eberstein, Minors, Appellees.

No. 05-85-01081-CV.

Court of Appeals of Texas,

Dallas.

May 7, 1986.

Rehearing Denied June 12, 1986.

Cary Dorman, Royal H. Brin, Jr., Mark H. Donheiser, Strasburger & Price, Dallas, for appellant.

Ronald D. Wren, Stradley, Schmidt, Stephens & Wright, Dallas, for appellees.

Before STEPHENS, GUILLOT and STEWART, JJ.

GUILLOT, Justice.

United States Fire Insurance Company ("USFI") appeals from a judgment in favor of appellee, Terri Sue Eberstein, individually and as next friend of Leslie Michelle Eberstein and Adrian Elizabeth Eberstein, minors (collectively referred to as "Eberstein"). For the reasons below, we reverse and render judgment in favor of USFI.

Eberstein sought recovery of worker's compensation death benefits under sections 1 and 1b of article 8309 of the Revised Civil Statutes, for the fatal automobile accident of Dr. Allan Eberstein. Dr. Eberstein was the sole employee of Dr. Allan Eberstein, P.A., which provided the car Dr. Eberstein was driving at the time of his accident. It is undisputed that the professional association paid all the expenses for the car including maintenance and insurance premiums.

The factual dispute in this case concerns Dr. Eberstein's destination at the time of the accident. Dr. Eberstein had left a Grand Prairie golf course, where he had just participated in a golf tournament, and was proceeding on Interstate 30 heading east at the time of his accident. The jury found that Dr. Eberstein was on his way to visit a patient at Dedman Hospital in Farmers Branch, Texas, although USFI contended that Dr. Eberstein was on his way to a basketball game at Reunion Arena.

USFI contends in its first point of error that, even assuming that Dr. Eberstein was driving to visit a patient at the hospital, as a matter of law, he was not in the course of his employment. We agree and, accordingly, reverse and render judgment in favor of USFI.

As a general rule, an injury occurring from the use of the public streets or highways in going to and returning from one's place of employment is noncompensable. Janak v. Texas Employers' Insurance Association, 381 S.W.2d 176, 178 (Tex.1964). Such an injury is suffered as a consequence of the risks and hazards to which all members of the traveling public are subject, rather than the risks and hazards having to do with and originating in the work or business of an employer. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350, 353 (Tex.1963); and Smith v. Dallas County Hospital District, 687 S.W.2d 69, 72 (Tex.App.--Dallas 1985, writ ref'd n.r.e.).

Under article 8309, section 1b injuries occurring during travel may be in the course and scope of employment and, therefore, compensable when transportation is: (1) furnished as a part of the contract of employment; or (2) paid for by the employer; or (3) under the control of the employer; or (4) when the employee is directed in his employment to proceed from one place to another place. Janak, 381 S.W.2d at 179. However, the mere gratuitous furnishing of transportation by the employer, as an accomodation to the employee and not as an integral part of the contract of employment, does not bring the employee within the protection of the Worker's Compensation Act. Bottom, 365 S.W.2d at 353. Section 1b of article 8309 must still be read in conjunction with section 1 of article 8309. Id. Therefore, the claimant must still show that the injury was of the kind and character that had to do with and originated in the work, business, trade, or profession of the employer and was received while he was engaged in or about the furtherance of the affairs or business of the employer. Id. at 354.

We hold that the professional association gratuituously furnished Dr. Eberstein with a car. The car was not an integral part of Dr. Eberstein's work. Although the car provided transportation for the doctor to get to the hospital, his work--surgery--was performed at the hospital. Furthermore, it cannot be said that, if the professional...