431 S.W.2d 787 | Tex. App. | 1968
This is a suit brought under the Workmen’s Compensation Law. Trial was by jury and judgment was rendered upon the verdict that plaintiff recover for total and permanent disability. The parties will be referred to here as they were in the trial court.
The primary points of error are that the finding by the jury that plaintiff was injured in the course and scope of his employment has no support in the evidence, that the evidence is insufficient, and that such finding is contrary to the weight and preponderance of the evidence. In passing upon the “no-evidence” point, we look only to the evidence favorable to such finding.
Plaintiff testified: He had worked for this same employer, Meadows Drilling Company, before, but on this job he had been
Whether or not plaintiff was in the course of his employment when he was injured is controlled by Sections 1 and lb of Article 8309, V.T.C.S., as judicially interpreted. The second part of Section lb deals with the dual purpose rule. It states, in effect, that an injury occurring during travel which is for the dual purpose of furthering the affairs or business of the employer and of furthering the employee’s personal or private affairs shall not be deemed in the course of employment “unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”
The leading case involving a situation similar to that of the present case is Janak v. Texas Employers’ Insurance Association (Tex.) 381 S.W.2d 176. This Janak case also involved a drilling crew, a car pool and water and ice. The Supreme Court first stated the general rule that an injury occurring while traveling to and
The facts of the present case show that the “Conroe” route was the most direct route for everyone except plaintiff, and if any one of them had suffered an injury after being picked up by plaintiff, that it would not be compensable. There is probably evidence in this record which would have supported a finding of “deviation” by the jury, as there is nothing in the opinions cited to us indicating that distance is the only factor to be considered in determining “deviation.” The words “regular” and “convenient” are also used by the courts and under the evidence most favorable to the findings by the jury, the fact that there was construction on the “Conroe” route could make the “Liberty-Dayton” route the more convenient. Also applying the most favorable interpretation to plaintiff’s testimony as to the number of times he had ridden or driven each route, if he had been working about 14 days before receiving the injury and had driven the “Liberty-Dayton” route five times before joining the car pool, and three times after joining the car pool, and had ridden on the “Conroe” route only seven times, then a jury could conclude the “Liberty-Dayton” route was plaintiff’s regular route.
However, even though plaintiff testified that he got into the car pool at his employer’s request in order to take his turn bringing the ice and water to the drill site, and because he thought he would lose his job if he refused, there is no evidence that the employer wanted plaintiff to be a member of the car pool for any reason except to get the ice and water to the well. Under the decisions, a deviation of routes for the purpose of bringing ice and water to the well would be in the course of employment, while a deviation for the purpose of taking part in a car pool, would not. Under the evidence, it would not have been necessary to have a car pool for the purpose of getting water and ice to the . well site, as the four men who were members of this car pool could have driven separate cars and still have' rotated the responsibility for bringing the water and ice to the well site. Plaintiff testified that the car pool was not worked out in order to get the water.
In the Janak case, supra, as stated above, a “deviation” was necessary because the route taken was the only one upon which the ice could be bought in order to get to work on time. The evidence in the present case shows plaintiff could have bought ice at Livingston, if he had taken the “Liberty-Dayton” route. The only reason given for not buying the ice in Livingston was a suggestion that the ice would cost 61 cents instead of 31 cents and “there would be a squabble with the company and the hands about that.”
We have concluded that the evidence shows as a matter of law that if this injury sustained by plaintiff occurred while plaintiff was deviating from his regular route, that the reason for the deviation was personal, that is, for the benefit of the car
Reversed and rendered that plaintiff take nothing.