Yeldell v. Holiday Hills Retirement and Nursing Center, Inc.
| Decision Date | 11 December 1985 |
| Docket Number | No. C-4177,C-4177 |
| Citation | 701 S.W.2d 243,29 Tex.Sup.Ct.J. 103 |
| Parties | Bertha F. YELDELL, Petitioner, v. HOLIDAY HILLS RETIREMENT AND NURSING CENTER, INC., Respondents. |
| Court | Texas Supreme Court |
Eakins, Kraft & Johnson, George C. Johnson, Kenneth C. Raney, Jr., Dallas, for petitioner.
Chappell & Handy, P.C., Mr. Michael Handy, Ft. Worth, for respondents.
This is an appeal from a damage award against a non-subscriber employer. The court of appeals reversed the trial court judgment in favor of Yeldell and remanded the cause for a new trial. 686 S.W.2d 770. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
Bertha Yeldell, a licensed vocational nurse, was working as a charge nurse for Holiday Hills Retirement and Nursing Center, Inc., a non-subscriber under the workers' compensation statute, TEX.REV.CIV.STAT.ANN art. 8306, sec. 1, subsections 1-4 (Vernon 1967). During Yeldell's regular shift and while at her duty station, she called her daughter. As she hung up the telephone, the cord became entangled with a 50-cup coffee urn that overturned, spilling hot coffee on her. She suffered second and third degree burns to her abdomen and thighs.
At trial, Holiday Hills offered Shirley Scroggins, a dietary aide at Holiday Hills, as a fact witness. Upon Yeldell's objection, the trial court refused to permit Scroggins to testify, because her name was not listed by Holiday Hills in response to interrogatories as a person with knowledge of facts and circumstances made the basis of the lawsuit. The jury returned a verdict for Yeldell and the trial court rendered judgment based on that verdict.
The issues before us are: (1) whether Yeldell was in the course and scope of employment as a matter of law, and (2) whether the trial court erred in refusing to permit Shirley Scroggins to testify.
The Texas Workers' Compensation Act provides in pertinent part:
The term "injury sustained in the course of employment" as used in the Act, ...
(4) ... shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer's premises or elsewhere.
TEX.REV.CIV.STAT.ANN. art. 8309, § 1 (Vernon 1967).
The Workers' Compensation Act should be liberally construed in favor of the employee, Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73, 75 (1953); it should not be hedged about with strict construction, but should be given a liberal construction to carry out its evident purpose. Southern Surety Co. v. Shook, 44 S.W.2d 425, 427 (Tex.Civ.App.--Eastland 1931, writ ref'd). An employee need not have been engaged in the discharge of any specific duty incident to his employment; rather an employee in the course of his employment may perform acts of a personal nature that a person might reasonably do for his health and comfort, such as quenching thirst or relieving hunger; such acts are considered incidental to the employee's service and the injuries sustained while doing so arise in the course and scope of his employment and are thus compensable. Texas Employers' Insurance Association v. Prasek, 569 S.W.2d 545, 548 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).
As charge nurse, Yeldell was over all the patients and nurses' aides in her wing of the nursing home. Her duties included giving medications to patients, charting patient care, supervising the nurses' aides, and being available to handle any special need which might arise. Holiday Hills contends that the personal telephone call was a deviation which took Yeldell out of the course and scope of her employment. The call was made from her desk at her regular duty station. There is nothing in the record to indicate that by picking up the telephone and talking to her daughter she was not available to supervise the nurses' aides or attend to the needs of the patients.
By refusing the writ of error in Shook, supra, we adopted the holding that Shook had not deviated from the course and scope of employment by going a half a mile from his employment to hunt wolves. We found no error in the court of civil appeals' holding in Prasek, supra, which held that the employee had not deviated from the course and scope of employment by leaving the drilling rig to which he was assigned, going to a trailer house nearby and eating dinner. He choked on the food during the meal and died.
In this electronic age, telephonic communication is a necessity. Under appropriate circumstances, making a personal telephone call during working hours may be as essential as a rest period or a refreshment break. In particular, a parent's telephone call to a minor child at bedtime is as reasonably necessary to a workers' well-being as quenching one's thirst or relieving hunger. It is more common than exercise or recreation as was approved in Shook. The trial court did not err in holding that as a matter of law Yeldell was within the course and scope of her employment.
On May 25, 1982, Yeldell served Holiday Hills with written...
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