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TEXAS EMPLOYERS' INSURANCE ASSOCIATION v. RAYMOND BLESSEN (12/02/57)

December 2, 1957

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, APPELLANT,
v.
RAYMOND BLESSEN, APPELLEE



Author: Pitts

PITTS, Chief Justice.

This is an appeal from a judgment rendered upon a jury verdict in a workman's compensation action filed originally by appellee, Raymond Blessen, against appellant, Texas Employers' Insurance Association, seeking disability benefits by reason of an alleged injury he sustained on July 14, 1955, while employed by Texas Sand and Gravel Company which is engaged in business in Potter County, Texas, with appellant herein as the insurance carrier. The jury found that appellee was accidentally injured on the said date while he was engaged in the course of his employment with his employer, Texas Sand and Gravel Company, as a result of which judgment was rendered for appellee granting him compensation benefits. Appellant perfected an appeal and the controlling question to be determined here is whether or not appellee as a matter of law received his injuries while engaged in the course of his employment as provided for in Article 8309, Vernon's Ann.Civ.St. We may observe also that appellant timely presented its motions for a peremptory instruction and for a judgment non obstante veredicto, both of which were overruled.

In defining the usage of the term "injury sustained in the course of employment," Article 8309, Section 1, Subdivisions 1, 2, 3 and 4, excluded several situations from coverage by the said term but finally in Subdivision 4 it says such:

"* * * 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."

The courts of Texas have found some difficulty in trying to draw a line of demarcation between facts and circumstances which will permit recovery under the terms of the provisions of the Statute just previously quoted and those which will not permit recovery. Both parties here have discussed the recent case of Superior Ins. Co. v. Jackson, Tex., 291 S.W.2d 689, 691, wherein the injured party contended that he was engaged in the furtherance of his employer's business when he was injured and both the trial court and the court of civil appeals sustained his contentions but the Supreme Court overturned both lower courts by reversing and rendering against the contentions of the injured party and there used the following language:

"While there is imposed upon the courts the duty of construing the compensation law liberally in favor of employees and though it is recognized that no plain, clear and distinct line of demarcation can be drawn applicable to all facts and situations, yet we have found no case where the provisions of the compensation law have been extended so as to cover an employee under the undisputed facts as shown in the record here."

The court there further said:

"* * * that the law allows compensation: '(1) Where the injury arises out of or is actually caused by the special work or job for which the employee was engaged, * * * or (2) where the injury has relation to the work for which the employee was engaged, * * *".

The court then held that:

"What the employee was doing at the time of the injury was not relevant to the work he was employed to do."

In this case, as in the case just cited, the facts concerning the controlling issue are without material dispute. Appellee had been employed as a truck driver by his employer for several years and was being paid for his services on an hourly basis. He had so worked on the day of his injury when his work day began at 8:00 A.M. o'clock and ended at 6 P.M. o'clock. After his working day ended he went home, "got cleaned up and had supper," after which he stayed around the house with the family for awhile until he went with two other fellow employees, namely Charlie Pulliam and Robert Lowery, in Pulliam's car, to an old gravel pit about eight miles away, previously abandoned by their employer, to get a transformer, bring it home with them, connect it up with the electrical system they already had in their homes to make the electric current stronger. Upon arrival at the old gravel pit appellee had climbed upon the transformer utility pole and in some manner there contacted a power line or a live electric wire, as a result of which he was severely injured at 7:30 P.M. o'clock.

Appellant contends that appellee's day's work had ended one and one-half hours before he received his injury while he was on a personal mission with other fellow employees who were likewise paid on an hourly basis and whose work day for their employer had already ended. Appellee contends that because he lived on his employer's premises in a rented house owned by his employer, who charged only a nominal rental of $5 per month with water and electricity furnished, his mission to get the transformer, attach it to the electrical system of his employer's house occupied by himself and family in order to strengthen the electric current already there would be beneficial to his employer, for which reason he claims he was engaged at the time of his injury in or about the furtherance or the affairs or business of his employer, as provided for by law.

Appellee testified in effect that he had worked for his employer as a truck driver for about three consecutive years and was engaged in hauling gravel and sand mostly to various places; that Bernie McHargue was superintendent of Texas Sand and Gravel Company and he was the man who hired appellee; that he was appellee's superior and boss on the job and the only company boss appellee knew of; that after working hours each day appellee's time belonged to himself and he would go about any personal matters he pleased; that on the day of his injury his working day began at 8:00 A.M. o'clock and ended at 6 P.M. o'clock and his hourly pay for that day ended at 6:00 P.M. o'clock; that he was injured at 7:30 P.M. o'clock which was one and one-half hours after his work day ended; that he voluntarily lived in a small three-room house made out of a box car on his employer's premises for which his employer charged him a monthly rental of $5, which sum was deducted monthly from his pay check; that his rental contract for living quarters provided that he be furnished the place to live for the rental paid but nothing was said about what the rental premises would include; that he was not required to live on his employer's premises, but other employees also lived there and he found it cheaper than living in town or elsewhere; that he was required to keep the premises in good order, as a result of which he had improved the house at times and used materials furnished by his employer when such were needed; that any improvements he put there became permanent improvements; that the electric current furnished by his employer was too weak to satisfactorily care for the use of his family Frigidaire and the air conditioner, for which reason he planned to get the transformer and connect it on to his electric current to improve the service for his home; that earlier on the day of his injury, Charlie Pulliam asked him if he wanted to go along with him to get the transformer and he agreed to go with Pulliam; that after working hours were over that day, he went along with Pulliam and Lowery to get the transformer at the old gravel pit where he was injured; that neither Pulliam or Lowery was a boss or had any authority over him; that before going after the transformer he did not have permission of his boss, Bernie McHargue, to go get the transformer nor did he know of any one else who had discussed the transformer with Mr. McHargue; that he (the witness) did not then know who owned the transformer and never thereafter learned who owned it; that Texas Sand and Gravel Company did not own the electrical equipment included in its lease; that the transformer in question was located in an old gravel pit which the Texas Sand and Gravel Company was not using but had abandoned altogether about four months previous to the date of his injury.

Appellee also offered in support of his claims the testimony by deposition of his fellow employee, Charlie Pulliam, who was also a truck driver for the same employer, was paid on an hourly basis and whose testimony corroborated in the main that given by appellee. Pulliam testified in effect that he and his family also lived in a small house on his employer's premises near the gravel pit where he worked for which he paid his employer a nominal rental of $5 per month; that he was not required to live on his employer's premises but voluntarily lived there because rent was cheaper and he was closer to his job; that on the day of appellee's injury the day's work for the witness was over at 6:00 P.M. o'clock and his hourly pay for his day's work ended at 6:00 P.M. o'clock; that he and appellee had worked together for the same employer for several years; that the Texas Sand and Gravel Company did not own the land where the employees lived and where the gravel pit was being worked but his employer merely leased the premises and had control over the same while using such; that Bernie McHargue was superintendent and in charge of the work he was doing; that he (the witness) was present when appellee was injured at the old Tascosa plant or gravel pit where they once worked eight miles west of where they lived and were then working another gravel pit; that they had torn down the old Tascosa plant three or four months previously and moved it to the new location where they were then working; that the transformer left at the old gravel pit was supposed "to have been a dead line;" that he and Lowery went with appellee to get the said transformer in the car owned by the witness, which car was not used by him in connection with his job with his employer; that on July 14, 1955, before going to get the transformer, the witness asked his boss, ...


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