*1 alleged the death claim based on an head
injury. Although the letter advised the Villagomez,
board the death of Adolfo
it was sufficient to constitute a claim
that it failed to the cause or circum- relate
stances purport of death did not on its per
face to be a claim letter se. The
merely request proper forms and jurisdiction
was insufficient to on confer
the board. Booth v. Texas
Ass’n, supra; & Pruitte v. Ocean Accident Corp.,
Guarantee 40 S.W.2d 254 (Tex.Civ.
App.1931), grounds, reversed on other 41 (Tex.Com.App.1933).
S.W.2d holding view our herein it is unnec-
essary pass petitioners’ on additional
points of error. judgment The of the Court Appeals Civil judg- reversed and the
ment of trial court is affirmed. CO.,
The AGRICULTURAL INSURANCE Petitioner,
Henry DRYDEN, Respondent. Harold Orgain, Tucker, Bachman, Bell & Cleve No. A-10786. Beaumont, petitioner.
Supreme Court of Texas. Dryden, Woodson E. E. William Towns- Dec. 1965. ley, Beaumont, respondent. Rehearing Denied Jan. 1966. STEAKLEY, Justice.
Henry Respondent, Dryden, Harold way on his when his auto- work mobile turned over after a sudden swerve hitting dog. question to avoid decided is whether he was in the course of en- at such time and hence compensation titled to workmen’s benefits. was; jury judgment found that he of the trial affirm- court based thereon was Appeals, Civil Jus- dissenting. tice hold We lb of Article Statutes, Vernon’s Annotated Texas Civil *2 place in place, transporta- was not the course of his to another such injury. ment at the time of his tion shall not be the basis for a claim injury occurring during that an employed the foreman or as of course such is sustain- pusher carpenter of a di- crew when ed in the course of Travel required rected to do so as one of his by employee an in the furtherance of personal transport duties in auto- his employer the affairs or business of his mobile site to site from work home work shall not be the basis claim that by certain owned an occurring during the course by carpenter The tools and used crew. of such travel is sustained in the course pounds. weighed between 180 and 200 employment, of if said travel is also twenty-five cents received an extra in personal private furtherance of or necessary for an hour as It was foreman. employee, trip unless the site fifteen to arrive at the work place of of said in- occurrence twenty or earlier in order to have minutes jury would have been made even had by ready for the tools unloaded and personal there been no or af- carpenters at them to com- the time for employee fairs of the furthered to be ques- in mence their work. On the occasion by trip, said and unless said would tion, Dryden 5:15 a. m. left his home about not have been made had there been no Texas. for a new affairs or time transporting He was the tools at the by trip.” be furthered said required and had left his home the few We held in minutes He the route Texas General Co. earlier. traversed v. Bottom been re- (Tex.Sup.), he would have used had he not (1963): There is quired to the tools. suggestion no in the record that provisions “When the of Section lb sought getting means of are read in connection those of with driving from work other than construing Section 1 and our decisions assigned the automobile had he not been same, and applying the we think the duty the tools. Legislature thereby intended to cir- probative cumscribe the effect V.A.T.C.S., 8309, as 1 of Article Section might given of trans- to the means “ here, provides term ‘in-
material
portation
purpose
journey
Orthe
employment’
jury sustained
the course
enlarge
rather than to
the definition
* * *
include all other
shall
found in Section 1.”
every
having to do
kind and character
business,
originating
with
Janak
profession
received
trade or
Ass’n (Tex.Sup.),
(1964),
employee
engaged
analyzed
in or about
an
we
Section lb as follows:
business
the furtherance of the affairs or
lb,
“Sec.
Article
enacted
upon
whether
parts.
part
has
first
two
ployer’s premises or elsewhere.”
injuries during
declares
travel to be in
Legis-
added
lb of Article 8309 was
employment,
the course of
and there-
1957;
provides:
lature
it
compensable, only
fore
trans-
when
portation
furnished
transportation is
(1)
part
is
furnished as a
“Unless
part
employment,
(2)
of the contract
or
is
paid
un-
paid
employer, or
employer,
(3)
is
or
is un-
der
employer,
(4)
means
such
the control of
less the
employer,
control of the
when ‘the
directed in his
is directed
one
or unless the
”
place.’
to another
proceed from
employment to
POPE,
(concurring).
oc-
necessarily
It
follows
Justice
curring
transportation cannot be
during
for a reason
agree
result but
with the
such was sustained
the basis of
claim that
that stated in the
somewhat different from
required by
employment,
in the course of
opinion
majority opinion.
my
Section 1
unless one of the
of Article
*3
employment
Dryden
was
the course
prerequisites
enumerated
the first sen-
meaning
1 and the
within the
of Section
present.
tence of
It
un-
Section
lb
lb,
part
first
Article 8309.
of Section
Un-
disputed
transportation
that
was not furn-
prove
der
had
Section lb
to
that
part
ished
his contract of
transportation (1)
injury
his
occurred when
employment;
transportation
that
was
part
was furnished as a
of the contract of
paid
employer;
not
for
his
and that the
employment,
paid
by his
(2)
or
was
not under
was
the control
ployer, or
of th
(3) was under
control
of the
preliminary
The final
employer,
he, Dryden, was di-
(4)
or
when
condition,
be directed in
proceed
rected in his employment to
from
his
proceed
place
to
from one
place
place.
one
I
hold
to another
place,
to another
is likewise
All
absent.
brought himself within the
Dryden’s
going
travel was
to and from
category.
fourth
Friday
On the
before
work.
subjection
His
to
hazards
traffic
accident,
him
his
directed
driving
of,
while so
not
was
the result
or
employer’s power
job
take the
tools from a
by,
caused
any
direction of his
site
employee’s
Jasper
to the
home in
Coun-
proceed
place
that he
from one
to another.
ty
following
and to deliver the
There
assigned Dry-
was no
mission
Monday morning
from
home to a new
required
den
any
apart
which
him
travel
job
Nederland,
site in
Texas. He was di-
from,
to,
regular
per-
or in addition
and
rected to have
on hand
ready
the tools
and
sonal
to and from work. Cf.
they
the other workmen when
Casualty
Fidelity
Company
Whisenant v.
arrived. Ordinarily
employer provided
York,
New
(Tex.Civ.App.
354
683
S.W.2d
a company
truck
ref.,
e.).
writ
n. r.
another,
tools from
job
sepa-
one
but
arrangements
rate
were made when the
recognize
language
We
in cases such
company
Dryden’s
truck was unavailable.
as American
Insurance
General
Co. Cole-
responsibility
additional
to his
man,
(1957),
Tex.
The of Civil Dryden’s Appeals defeats claim. The statute reversed, and of the trial court are following “unless” states a two- judgment is the word rendered for Petitioner. pronged test that he Company, partnership. unable meet. Construction provides: partners were Fontenot. Jones engaged firm was in the business con- “ * * * Travel structing houses. The houses to be con- the furtherance of busi- or structed and under lo- construction were ness of his shall not be the cated in several towns and cities in South- basis for a claim that an occur- east near Beaumont and ring during the course of such travel Texas. is sustained in the course of ment, if said travel is also further- Dryden, employed, just when first ance of affairs of a member of a crew. Later he ele- employee, unless the position vated of foreman “tool of occurrence of said pusher.” Both and Fontenot tes-
would have been made even had there showing tified to contract facts a personal been private no employment. transport The contract to the by to be furthered said Company’spower the entered in- tools was trip, and trip unless said would not have to on acci- Friday afternoon before the been made had there been no affairs dent morn- Monday occurred the following or business to be ing. Dryden partic- this testified that on by trip.” furthered said Friday working ular in he had been the high- Pinewood addition on the Lake Sour provision, under that as a basis way; be- job that had a to Fontenot new claim, for his prove had things. to He two gin Nederland, in the town of prove had to trip the that to Nederland Jefferson County, Monday morning; following the morning the accident would have that Pinewood Mr. Fontenot came to the been made even had there been no job site and deliv- Friday that afternoon affairs of his own to be' further- pay checks; ered in- the and that Fontenot by trip. the He met that test. He also power structed load the tools to prove had to trip that the would transport home them to his automobile, been made had there been no affairs or Jasper County, near de- Evadale in to be furthered job liver the tools to near a trip. the This test is a difficult one waiting to where the crew would employee. Dryden prove for the did not begin the of a new house with construction that he would not have made the but power hand the tools as as their own well necessity delivering the for tools testify on tools. went on to that the into occasions when Fontenot would enter I concur in the result. Fontenot, he, help agreements such load the Fontenot tools the automobile. ON FOR REHEARING MOTION originally testified that ployed carpenter, and later SMITH, (dissenting). Justice foreman; promoted to that the it was respectfully The holding general carpenter dissent. that custom in the trade that carpenter under Section lb Article hand Vernon’s each furnish a full set of Statutes, work”; he, re- “if that Fonte- Annotated Texas Civil the tools he wants to not, spondent, Dryden, power in the course of Fontenot was not furnished the tools. injury, usually the Company at the time of testified that fur- transport import power recognize fails the nished its truck to the full own he job another, the em- tools and that between from Dry- driving the ployer employee, Dryden. performed job actually and the the power of his the originated den’s in the work truck F truck employed by Company. Company the employer. He was & When J he pointed out the fact that available, arrange was not he would with way parcels his- sometimes delivered on transport Fontenot tools. delivery home, had none for on that “but particular Friday, his testified that on this night.” pointed The Court also out partner, Jones, possession of the Com- Flanagan “[ajfter drug he left store pany’s truck driven Fonte- (usually tool day’s at the close of his o’clock up” work at ten not) gone “pick and had to Houston to p. night m. on he was Beaumont; he was building contract on a pleased he go to where and Ms he, Fontenot, employed on that same Friday free er had no control On pick over his movements. up power trans- night port going he was home the most them in his automobile to his home Jasper direct route and was within blocks of County ready two and to have them him.” home when the automobile struck following crew Nederland the gen- This case held Monday to fall within morning. Dryden Fontenot compensation eral rule which disallows power both testified that tools were injuries employees going to or re- job never on left unattended. Fontenot turning Friday, testified particular that on that he Both the
assigned Flanagan case and the Bottom “him [Dryden] his work.” Part recognize case that there cases which of that work was to exceptions fall general to this rule. to be started at Nederland. giving These the Bottom a few ex- support facts are sufficient after a find- amples of cases where received ing is of a kind and char- *5 acter while going to or from work have originated returning had to with do and been business, compensable, the held to be this Court profession trade or of placed employer factually Bottom’s and case within the was received while he “ * ** general was rule and held engaged in or about the furtherance [i]t of gratuitous the well settled that the fur- employer. affairs or mere nishing transportation employer See Texas of the General v. Bot- Co. tom, employee 365 an accommodation and to the (Tex.Sup.1963). S.W.2d 350 not integral part as an of the contract The Bottom case construes Section lb employment bring does not the of Article Vernon’s Annotated Civil injured who is while on the traveling Statutes, and approval cites with the case highways protection streets and within the of United States Guaranty Co. Fidelity & Compensation the Act.” Workmen’s Flanagan, v. Tex. 136 S.W.2d (1940). record, Dryden the Flanagan supports Under was bound case the contractually Bottom the language but there is the the Flanagan job. Nederland insurer case which Fontenot and the strongly indicates a acting as merely contend that was different result would have been reached employer transporting a “favor” the the record shown facts similar those presented jury the but the present facts in the found that case. In the was in the of his Flanagan case the course essential facts were few. transporting ment. Flanagan was the sustained in furtherance of business streets the affairs and returning Beaumont of his bicycle He was not on a home after work hours when the upon Flanagan mission as and Bottom. Un- riding which he struck were was was law, was, agreement der the employed by an Fontenot Flanagan automobile. controlling transportation the drug company parcels to deliver in the City Regardless tools at all times. owned Flanagan who Beaumont. furnished automobile, legal con- bicycle own effect of the means of employer tract parcels. However, de- was that the furnished Flanagan was not by Dryden per- parcels at accident. used livering the time formance of a service to the Beaumont to Nederland. and the ployer. The means employer knew that the members of the employer selected accepted by proper crew must prop- have the tools to Dryden. The employment contract of erly be- adequately perform their duties. gan the moment started loading In the case of Alliance v. Western Jecker tools. The employment had not Co., (Tex.Sup.1963), ended when the accident occurred on Mon- this Court heirs allowed to recover Jecker’s day morning. The facts of this case meet Compensation Act. the Workmen’s prerequisites enumerated in analogous. case is Jecker Jecker 8309, supra. of Article Section lb should manager a sales and his em- service be construed light in the of the facts sur- ployer. least, Impliedly, at had been Jecker rounding contract. directed an elec- service should be remembered that contracts be- nearby tric heirs stove town. Jecker’s tween usually case were allowed to recover because their oral. New agreements between exception fell rule. general to the and employee are made from time time as circumstances arise. We have such a judgments I would affirm the of the trial situation here where Fontenot realized that Appeals. court and the Court of Civil provide he must get a means to the tools to Nederland. He realized that was his it
responsibility transportation. to furnish the
In order to fulfill his contract to build a
house and incidentally profit, earn a Fonte- turned to transportation.
The arrangement Dryden’s equivalent
automobile was ARTHUR, Petitioner, transportation. furnishing accept- The CITY OF PORT and while out carrying *6 agreement injured. Dryden was di- al., Respondents. Harrell TILLMAN et G. rected No. A-10444. Pinewood addition to Evádale and from Evadale to Nederland. The Supreme Court of Texas. of the tools was under the control of the July 28, 1965. employer. Dryden, transpor- so far as the tation of concerned, tools was was un- Rehearing Jan. Denied der the absolute control and dominion of his employer. Court, This in the case of Janak Ass’n, 381 S.W.2d
176 (Tex.Sup.1964), held that travel dur-
ing a deviation regular from a route was employer’s furtherance business. Janak, pusher” the “tool knew that the procure
crew they “must ice if were to any for their water.” In our agreed knew that he had to deliver site Nederland. He knew
that he had to travel from his home in Jas-
per County, through the town of
Vidor in Orange County, through thence