Wynn v. Southern Surety Co.

• Decision Date: 13 March 1930
• Docket Number: No. 880.,880.
• Citation: 26 S.W.2d 691
• Parties: WYNN et al. v. SOUTHERN SURETY CO.
• Court: Texas Court of Appeals

26 S.W.2d 691

WYNN et al. v. SOUTHERN SURETY CO.

No. 880.

Court of Civil Appeals of Texas. Waco.

March 13, 1930.

Rehearing Denied April 17, 1930.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Suit by the Southern Surety Company against Mrs. Pearl S. Wynn and others to set aside a compensation award. Judgment for plaintiff, and defendants appeal.

Affirmed.

E. C. Street and W. L. Eason, both of Waco, for appellants.

Witt, Terrell & Witt, of Waco, for appellee.

BARCUS, J.

Appellee instituted this suit to set aside an award that had been made by the Industrial Accident Board in favor of appellants. The cause was tried to a jury, and at the conclusion of the testimony the trial court instructed the jury to return a verdict for appellee. Based thereon, judgment was entered denying appellants any recovery.

The facts are practically without dispute. It appears that H. D. Wynn, the husband of Mrs. Pearl Wynn and father of Alice Elizabeth Wynn, appellants, was working for the Laney Creamery Company, Inc., of San Antonio, in the capacity of a field man, his duties being to visit creameries in a territory extending over a large portion of Texas. His employment required him to not only visit the creameries and solicit business, but to assist in establishing new creameries. He was employed on a salary of $125 a month and expenses, and was furnished an automobile in which to make his territory. He began working for said company in January, 1926. His trips to the northern portion of his territory, which embraced Waco, Tex., kept him from the office about two weeks. On the 5th of March he worked the territory around Cameron and Lott, south of Waco. On Saturday, the 6th of March, he worked in McGregor, west of Waco, and then came to Waco and registered at the hotel. He wrote the Laney Creamery Company on said date that the roads were extremely bad by reason of heavy rains, but that he hoped by the following Tuesday to be able to go to Hamilton county on the company's business. There were two customers in Waco that he was expected to see while there; namely, the M-B Ise Kream Company and the Purity Ice Cream Company. On Saturday afternoon he called the M-B Ise Kream Company to ascertain if it would be open on Sunday, and he was told that it would be. Under the terms of his employment, Mr. Wynn was, when necessary, expected to work on Sunday and see his prospective customers. Nothing further is known about Mr. Wynn's movements until 6:30 Sunday afternoon, March 7th, at which time he went to a restaurant on South Sixth street in the city of Waco for his evening meal. After his meal he walked about 100 feet to Austin avenue, the main street in said city, and attempted to cross Sixth street, going toward the Raleigh Hotel, where he was registered, and in attempting to cross said street he was struck by an automobile and killed. There was no evidence that he called on either the M-B Ise Kream Company or the Purity Ice Cream Company on Sunday, or that he did any other act during said day of any kind or character.

The question for determination is whether the above facts make a prima facie showing that Mr. Wynn received his injuries "in the course of his employment," as contemplated by section 1, article 8306, of the Revised Statutes.

Appellants contend that, since Mr. Wynn was a field man, and his duties required him to travel from place to place and be away from home for several days or weeks at a time, the injury which he received was presumed to have been received "in the course of his employment," and that the fact that he did receive an injury which resulted in his death while out on a trip for the company made a prima facie case in support thereof.

As has been often stated, each case coming within the purview of the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309, as amended) must in its final analysis depend upon the facts surrounding the individual case. The courts have uniformly held that, where an employee's duties are to be performed within or on the property of his employer, an injury is received "in the course of his employment" if the same is received while on said premises, engaged in his master's business, or if received while getting on or off of said premises. The courts further hold with practical unanimity that, if the injury occurs after the employee has left the premises of his employer and gotten upon the highway or street that is not in any way under the control of the employer, any injury which he might receive as a result of accidents that are common to the general traveling public is not received "in the course of his employment."

In United States Fidelity & Guaranty Company v. Lowery (Tex. Civ. App.) 231 S. W. 818, it was held that, where a traveling salesman was returning by the direct route and method from a trip on which he had been sent by his employer, the injury was received "in the course of his employment."

In Texas Employers' Insurance Ass'n v. Bailey (Tex. Civ. App.) 266 S. W. 192, it

was held that, where a laundry driver gave a man who had a gun a ride, and the gun was accidentally discharged and caused an injury to said driver, that same was not received "in the course of his employment."

In Langford v. El Paso Baking Company (Tex. Civ. App.) 1 S.W.(2d) 476, it was held that, where an employee was delivering some bread as an accommodation for another employee of said company, in a car which did not belong to the company, but which did belong to the manager thereof, his acts were not binding upon...