Johnson v. Pacific Employers Indemnity Company

439 S.W.2d 824, 12 Tex. Sup. Ct. J. 319, 1969 Tex. LEXIS 245
CourtTexas Supreme Court
DecidedApril 9, 1969
DocketB-1211
StatusPublished
Cited by17 cases

This text of 439 S.W.2d 824 (Johnson v. Pacific Employers Indemnity Company) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Pacific Employers Indemnity Company, 439 S.W.2d 824, 12 Tex. Sup. Ct. J. 319, 1969 Tex. LEXIS 245 (Tex. 1969).

Opinion

CALVERT, Chief Justice.

In this suit for benefits under the Workmen’s Compensation Law, the trial court’s judgment awarded petitioner Johnson a recovery, in a lump sum, of benefits for total and permanent disability, plus medical expenses in the sum of $5,715.00. The court of civil appeals reversed the judgment of the trial court and rendered judgment that Johnson take nothing. Tex.Civ.App., 431 S.W.2d 787. The court of civil appeals held that the evidence establishes, as a matter of law, that Johnson’s injuries were not sustained in the course and scope of his employment. The court’s holding nullified a jury finding to the contrary. The judgment of the court of civil appeals is reversed and the cause is remanded to that court.

Johnson was employed as a member of a drilling crew by Meadows Drilling Company. The site at which the crew was working was several miles southwest of Johnson’s home at Soda, Texas. His usual and most convenient route to the drill-site was southerly along a county road to its intersection with State Highway 146; thence south on State 146 to its intersection with U.S. Highway 90 at Liberty; thence west on U.S. 90 to Dayton; thence west on State Highway 1960, through Humble, to the drill-site. This route will be referred to in this opinion as the “Liberty-Dayton” route. Another route, which Johnson sometimes traveled and which he was traveling when he was injured, runs west from Soda over U.S. Highway 190 to its intersection with U.S. Highway 59 at Livingston; thence south on U.S. 59 to Cleveland; thence west on State Highway 105 to Conroe; thence south on U.S. Highway 75 to its intersection with State Highway 1960; thence west on State 1960 to the drill-site. This route will be referred to as the “Conroe” route.

The Conroe route is shorter than the Liberty-Dayton route, but the Liberty-Dayton route was the more convenient for *826 Johnson at the time because some seven miles of the Conroe route between Livingston and Cleveland was under construction. It was while traveling along the section of the road under construction on the Con-roe route that Johnson was injured when his automobile skidded and turned over.

As is customary in drilling operations, the members of the drilling crew were required to obtain and transport needed water and ice to the drill-site. Meadows furnished the can used for transporting the water and ice, and reimbursed crew members at the end of the month for money expended by them for ice.

When Johnson was employed, Wiggins, who was boss of the drilling operation and lived east of Conroe on State 105, and Nelson and Hopper, two crew members who lived in Conroe, were going to and from work in a car pool. They would pick up water and ice in Conroe. For the first few days of his employment, Johnson took the Liberty-Dayton route to and from work. Then, Wiggins asked him to get into the car pool “to help them get the water and the ice out on the rig,” and he agreed to do so. Wiggins had authority to hire and fire members of the crew, and, according to the testimony of one member, “If he told you to do something and you didn’t do it * * * he would fire you.”

The car pool arrangement was somewhat unique. It was the responsibility of the crew member whose turn it was to drive all the way to the drilling rig to buy the ice and to transport it and the water. Every fourth day was Johnson’s day to drive all the way. He would pick up Wiggins east of Conroe, would stop in Conroe to get the ice and water and to pick up Nelson and Hopper, and would then drive south on U.S. 75 to its intersection with State 1960 and west on 1960 to the rig. When'■'it was Wiggins’ day to drive, Johnson would drive to Wiggins’ home, leave his car there, and ride with Wiggins to Conroe and on to work. On the remaining two days, Wiggins and Johnson would alternate in driving from Wiggins’ home to Conroe. On the day before the accident, Johnson had traveled the Liberty-Dayton route. On the day of the accident, it was Johnson’s turn to drive all the way to the rig, and he had to make up his mind the night before to take the Conroe route or he would have lost his job. The accident happened before he reached Wiggins’ home.

The jury gave an affirmative answer to Special Issue No. 11 inquiring whether it found from a preponderance of the evidence that the injury to Johnson “was sustained in the course and scope of his employment for Meadows Drilling Company.” In his charge to the jury, the trial judge defined the phrase, “sustained in the course of employment,” in the language used to define it in Section 1, Article 8309, Vernon’s Texas Civil Statutes. Further reference will be made to this definition at a later point in this opinion. As a guide to arriving at its answer to the special issue, the court’s charge also gave the jury the benefit of the limiting provisions of Section lb, Article 8309.

The first limiting provision in Section lb is contained in the first sentence and reads as follows:

“Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. * ⅝

Pacific argued strenuously in the court of civil appeals, and insists here, that, on the record before us, a recovery by Johnson is precluded by the foregoing statutory provision. The court of civil appeals did not reach this question.

Johnson’s transportation was not furnished or paid for by his employer, and *827 was not under his employer’s control. It follows that the judgment of the court of civil appeals denying a recovery can be based upon the first limiting provision unless the evidence gives rise to a reasonable inference that Johnson had been “directed in his employment to proceed from one place to another place.” In Janek v. Texas Employers Insurance Association, 381 S.W.2d 176 (Tex.Sup.1964), we held that an employee, who was required to take a deviated route from his home to his place of work in order to pick up ice to cool the water to be drunk by members of a drilling crew, was, within the meaning and intention of the statute, “directed in his employment to proceed from one place to another place.” In that case, we said the direction was implied. In this case, we need not concern ourselves with the matter of an implied direction inasmuch as we are of the opinion that the jury could reasonably infer from the evidence that Johnson was expressly directed by Wiggins to take a deviated route from his home to his place of work. Considering the undisputed testimony that Wiggins had authority to hire and fire members of the drilling crew, and that he would fire anyone who didn’t do what he told him to do, we think the jury could reasonably infer that Wiggins’ request 1 to Johnson to get into the car pool to help get the water and ice to the rig, had the force and effect of a direction.

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Bluebook (online)
439 S.W.2d 824, 12 Tex. Sup. Ct. J. 319, 1969 Tex. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-pacific-employers-indemnity-company-tex-1969.