Mapp v. Maryland Casualty Corp.

725 S.W.2d 516, 1987 Tex. App. LEXIS 6660

• Court: Court of Appeals of Texas
• Decided: February 26, 1987
• Docket: No. 09 86 122 CV
• Status: Published

Opinions

OPINION

BURGESS, Justice.

Clara Mapp worked for Reinauer Real Estate as an assistant manager. Her duties included displaying and renting apartment units at two different apartment complexes. She worked primarily in Port Arthur, Texas, but also worked in Orange, Texas one or two days per week. In March 1983, Mrs. Mapp was instructed to go to the Orange complex and relieve the manager there. She reported for work and performed her ordinary tasks. When the noon hour came, Mrs. Mapp turned on the telephone answering machine, locked the office and left the apartment premises for lunch. She went to a local cafeteria in a nearby shopping center and finished eating approximately 12:45 p.m. As she was entering her vehicle to return to the apartment complex, she was assaulted and then abducted. The kidnapper forced her into the vehicle and proceeded to leave Orange. Mrs. Mapp was able to jump out of the vehicle, but as a result of the attack and escape, sustained serious personal injuries.

In this lawsuit, Mrs. Mapp seeks to recover benefits under a policy of workers’ compensation insurance that her employer had with appellee. Appellee moved for summary judgment in the court below on the basis that Mrs. Mapp’s injuries were not sustained in the course and scope of employment. The trial court granted the motion and Mrs. Mapp appeals alleging error in that a material issue of fact existed as to whether she was acting in the course and scope of her employment at the time she was injured.

Summary judgment is a harsh remedy and should be strictly construed against the moving party. Lee v. McCormick, 647 S.W.2d 735 (Tex.App. — Beaumont 1983, no writ). Summary judgment may only be granted if the evidence offered in support of the motion establishes the movant’s right to judgment as a matter of law. Teer v. Duddlesten, 664 S.W.2d 702 (Tex.1984). In deciding whether there is a disputed material fact, evidence favorable to the non-moving part will be taken as true, every reasonable inference from the evidence will be indulged in favor of the non-movant and any doubts resolved in his favor. Montgomery v. Kennedy, 669 S.W.2d 309 (Tex.1984).

In order to recover workers’ compensation benefits, an employee must show that the injury was sustained in the course of employment. TEX.REV.CIV.STAT. ANN. art. 8306 sec. 1 (Vernon 1967). Generally, an injury sustained in the course of employment must be of the kind or character originating in or having to do with the employer’s work and must have occurred while engaged in the furtherance of the employer’s business. Texas Employers’ Ins. Ass’n v. Page, 553 S.W.2d 98 (Tex.1977). However, an employee need not be engaged in the discharge of their specific duties incident to employment but may, in the course of their employment, 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 any injuries sustained while doing so arise in the course and scope of employment and are thus compensable. Yeldell v. Holiday Hills Retire. & Nursing, 701 S.W.2d 243 (Tex.1985).

Many cases have held injuries sustained while having lunch or going to a meal compensable. For example in Texas Employers’ Ins. Ass’n v. Davidson, 295 S.W.2d 482 (Tex.Civ.App. — Fort Worth 1956, writ ref’d n.r.e.) the employee was injured during her lunch hour. She ate lunch at her work station and after finishing, slipped and fell while going to dispose of her trash. This injury was held to be within the course and scope of employment. In Texas Employers’ Ins. Ass’n v. Prasek, 569 S.W.2d 545 (Tex.Civ.App.— Corpus Christi 1978, writ ref’d n.r.e.) the employee died after choking on a particle of food. He was on a drilling site eating a meal in facilities provided by the employer for eating and sleeping. Also, in Shelton v. Standard Insurance Company, 389 S.W.2d 290 (Tex.1965) our Supreme Court found an employee was killed in the course and scope of his employment when he was struck by an automobile as he crossed the street from a motel to a restaurant. The employee was a truck driver and was “stranded” in Dallas due to his disabled truck. His presence at the motel and visit to the restaurant to eat were, therefore, incident to employment.

The facts of Mrs. Mapp’s circumstance most closely parallel those in Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192 (1937). Mr. Smith worked for a funeral home. His working hours were from 8 a.m. to 10 p.m., with an hour for his noon and evening meal. During this meal period, Mr. Smith could eat anywhere he desired, but if he was not going to eat at home, he was required to notify his employer of his whereabouts. On the evening of his fatal injuries, Mr. Smith had gone home for his evening meal and was returning to the funeral parlor when he was involved in an automobile accident. His death was held not to have been in the course and scope of employment. We find no distinction between Mrs. Mapp’s case and Smith, supra.

Mrs. Mapp can find no solace in the “temporary direction exception” found in TEX.REV.CIV.STAT.ANN. art. 8309sec. 1 (Vernon 1967). The purpose of this article was to eliminate the dilemma that faces an employee when he is instructed to perform a task outside his employer’s usual business: either obey the employer and lose the compensation coverage or disobey the employer and lose his job. Biggs v. United States Fire Ins. Co., 611 S.W.2d 624 (Tex.1981). Here, Mrs. Mapp’s duties in Orange were regular and routine. She was performing her usual duties while on the premises in Orange.

The summary judgment evidence conclusive showed that Mrs. Mapp was not required to perform any duties during her lunch hour. She was not required to go to lunch at any particular place, or to even have lunch for that matter. As tragic and unfortunate as the incident was, there were no material facts raised as to course and scope of employment. The trial court did not err in granting the motion for summary judgment. The judgment of the trial court is affirmed.

AFFIRMED.