Opinion
No. 10-04-00314-CV
Opinion delivered and filed October 19, 2005.
Appeal fromthe 87th District Court, Limestone County, Texas, Trial Court No. 26,920-B.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Special Note by Chief Justice GRAY).
MEMORANDUM OPINION
This is a worker's compensation case. The jury found that William Ira Mathison ("Mathison") was in the course and scope of his employment when he was involved in a motor vehicle accident on August 23, 2002. Pacific Employers Insurance Company ("Pacific") appeals this finding as legally and factually insufficient. We will affirm.
BACKGROUND
The Texas Workers' Compensation Commission Appeals Panel upheld a Hearing Officer's determination that Mathison was not within the course and scope of his employment at the time of the motor vehicle accident on August 23, 2002. Mathison filed a lawsuit in district court seeking judicial review of these determinations. After a jury trial, the trial court overruled Pacific's Motion for Directed Verdict and entered judgment that Mathison was in the course and scope of his employment at the time of the accident.
Mathison worked as a welder for BP America, Inc. ("employer"). He worked as part of a "self-directing" unit operating out of Mexia, Texas. The principal office of his employer is located in Texas City, Texas and maintains a trucking facility in Bryan, Texas. Mathison was issued an employer-owned laptop computer to be used for entry of his time, entry of his expenses, communication with the Texas City office, and other company related business. Prior to August 23, 2002, Mathison began to experience difficulties with his laptop computer. He arranged to meet the employer's computer consultant at the Bryan facility to inspect and attempt to repair his computer. Mathison drove his personal vehicle to Bryan on August 23, 2002, and during the afternoon, the consultant informed Mathison that he would need to carry Mathison's laptop computer to his Texas City office to repair it. Mathison then left to return to Mexia. Approximately 15 miles from the Bryan facility, Mathison was in an accident. He had extensive injuries and remained off work for almost one year.
STANDARD OF REVIEW
A no-evidence point must and can only be sustained when the record reveals: (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence conclusively establishes the opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex. 1990) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)). We must credit favorable evidence if reasonable fact finders could, and disregard contrary evidence unless reasonable fact finders could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Generally, if the court of appeals sustains a "no evidence" point, it is the court's duty to render judgment for appellant. Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986) (quoting Nat'l Life Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex. 1969)).
When we review an "insufficient-evidence" point challenging the factual sufficiency of the evidence to support a finding that favors the party who had the burden of proof on that finding, we may set aside the finding only if a review of all the evidence, both for and against the finding, demonstrates that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex.App.-Waco 2000, pet. denied). We may not pass upon the witnesses' credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986). Reversal could occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. Checker Bag, 27 S.W.3d at 633 (citing William Powers, Jr. Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 TEX. L. REV. 515, 519 n. 11 (1991)).
COURSE AND SCOPE OF EMPLOYMENT
Texas Labor Code section 401.011(12) states:
(12) "Course and scope of employment" means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;
(ii) the means of the transportation are under the control of the employer; or
(iii) the employee is directed in the employee's employment to proceed from one place to another place;
. . .
TEX. LABOR CODE ANN. § 401.011(12) (Vernon Supp. 2004-05). The third exception under section 401.011(12) is known as the "special mission" exception. See Evans v. Illinois Employers Ins. of Wausau, 790 S.W.2d 302, 304 (Tex. 1990). The Texas Supreme Court has stated: "We construe this exception to include those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment." Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776, 779 (Tex. 1963), overruled on other grounds by McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964).
Mathison's supervisor testified that (1) an employee of a self-directed unit is expected to do what is necessary to get something fixed and to get their job done; (2) a laptop computer is considered an essential piece of equipment for workers like Mathison; (3) he would not have wanted Mathison to call him concerning his broken laptop computer; (4) Mathison did what he expected him to do in taking the computer to Bryan to get it fixed and considered this in furtherance of the employer's business. We find that Pacific has failed to demonstrate that there is no evidence or insufficient evidence to support the jury's finding. See Juliette Fowler Homes, 793 S.W.2d at 666 n. 9; Cain, 709 S.W.2d at 176; Checker Bag, 27 S.W.3d at 633. Mathison was impliedly directed by his employer to take his laptop computer to Bryan to have it fixed, and thus, he was acting in the course and scope of his employment at the time of the accident on August 23, 2002. See Tex. Labor Code Ann. § 401.011(12); Jecker, 369 S.W.2d at 779.
We overrule the issue.
CONCLUSION
We affirm the judgment.
SPECIAL NOTE
At some point the Supreme Court or the Court of Criminal Appeals will have to decide whether opinions and judgments voted on by only two justices on this Court are proper. See Krumnow v. Krumnow, No. 10-04-00143-CV, 2005 Tex. App. LEXIS 7027, ___ S.W.3d ___ (Tex.App.-Waco August 24, 2005, no pet. h.) (Special note by Chief Justice Gray issued August 31, 2005).
This is an important case to which I have been unable to devote the time and attention I believe it deserves before I can vote. Thus, by rushing its release, the majority deprives me of the opportunity to spend the time I believe is necessary to review and vote on the result of the case. They deprive me of the very opportunity they have on every one of the opinions that I draft for their review. They have all the time they need, not because I give it, though I would do so freely. They have the time because it is the appropriate deferral to their discretion as a justice on this Court. I also believe the full review by three judges is necessary for the proper functioning of our appellate court system.
By the procedure they have chosen to use, they also deprive the litigants of the considered vote of all members of the panel to which this case has been assigned. I think the litigants are entitled to have all the members of the panel to which the case is assigned consider and vote on the result of the appeal. Indeed, by issuing the opinion in this manner, the majority may be suppressing a dissenting opinion, the issuance of which would then give the Texas Supreme Court jurisdiction to review the majority's opinion. TEX. GOV'T CODE ANN. § 22.001(a)(1) (Vernon 2004); see also TEX. R. APP. P. 56.1(a)(1).
The release of the opinion in this case should await the time with patience until I have had the time to review it, and my vote returned. Accordingly, at this time I can neither vote to affirm nor vote to reverse the judgment of the trial court.