United States Fidelity & Guaranty Co. v. Flanagan

• Decision Date: 07 February 1940
• Docket Number: No. 7267.,7267.
• Citation: 136 S.W.2d 210
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. FLANAGAN.
• Court: Texas Supreme Court

136 S.W.2d 210

UNITED STATES FIDELITY & GUARANTY CO. v. FLANAGAN.

No. 7267.

Commission of Appeals of Texas, Section A.

February 7, 1940.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit under the Workmen's Compensation Act by Frank Flanagan to set aside an award of the Industrial Accident Board in favor of the United States Fidelity & Guaranty Company. Judgment for plaintiff was reversed by the Court of Civil Appeals, 103 S.W.2d 446, and defendant brings error.

Judgments of the trial court and of the Court of Civil Appeals both reversed, and judgment rendered.

J. Russell Mount, of Houston, for plaintiff in error.

Renfro & Keen, of Beaumont, for defendant in error.

HICKMAN, Commissioner.

This is a compensation case. The suit was instituted by Frank Flanagan by next friend, but he became 21 years of age before it was tried and the judgment ran in favor of him in person. The Industrial Accident Board denied him compensation on account of injuries sustained by him and he instituted this suit in the District Court to set aside the order of the Board and to recover compensation for incapacity and for certain hospital bills, doctor's bills and medical expenses. The petition sought recovery to an amount in excess of $1,000, but the recovery was for $315. The insurance carrier appealed to the Court of Civil Appeals, which court held that the pleadings were defective and on that ground reversed the judgment of the trial court and remanded the cause. 103 S.W.2d 446. Both parties accepted that ruling as being correct and no error is assigned thereon. We are, therefore, not authorized to review it.

The controlling question here is whether Flanagan, under his own testimony and the undisputed facts of this record, is entitled to any compensation. The essential facts are few. The Service Drug Company was the employer, Flanagan the employee, and plaintiff in error, the insurance carrier. Flanagan sustained personal injuries on the streets of Beaumont while returning to his home after work hours about ten o'clock at night when the bicycle upon which he was riding was struck by an automobile. For a few weeks prior to the accident he had been employed by the Drug Company to deliver parcels in the City of Beaumont. He furnished his own bicycle, kept it in repair and used same as a means of transporting the parcels. He could not have procured or retained his job without furnishing a bicycle. His home was about 2½ miles from the drug store. After he left the drug store at the close of his day's work at ten o'clock p. m. on the night he was injured he was free to go where he pleased and his employer had no control over his movements. On that night he was going home by the most direct route and was within two blocks of his home when the automobile struck him. He sometimes delivered parcels on his way home, but had none for delivery on that night.

Another fact pointed out, but which we regard as of no significance, is that the drug company did not provide and maintain a place at its store for the storage of Flanagan's bicycle. There is nothing in this record that would suggest that the reason Flanagan was riding his...