EDNA M. JORDAN, IndividuallyFROM A DISTRICT COURT and as Next Friend for LOUIS F. JORDAN, III, and JUDY JORDAN RICH, Individually and as Next Friend for DENISE RENE JORDAN, APPELLANTS, v. OF CENTRAL MUTUAL INSURANCE COMPANY, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00787-CV
 
EDNA M. JORDAN, IndividuallyFROM A DISTRICT COURT
and as Next Friend for LOUIS
F. JORDAN, III, and JUDY
JORDAN RICH, Individually
and as Next Friend for
DENISE RENE JORDAN,
 
 
        APPELLANTS,
 
 
v. OF
 
 
CENTRAL MUTUAL INSURANCE
COMPANY,
 
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES WHITHAM AND BURNETT
OPINION BY JUSTICE WHITHAM
FEBRUARY 28, 1989
        In this workers' compensation case, the plaintiff-appellants, Edna M. Jordan, individually and as next friend for Louis F. Jordan, III, and Judy Jordan Rich, individually and as next friend for Denise Rene Jordan, appeal from a judgment in favor of the carrier-appellee, Central Mutual Insurance Company. In two points of error, decedent's surviving compensation beneficiaries contend that the trial court erred in finding (1) that the deceased was not an employee and (2) that the deceased was not acting within the course and scope of his employment. For the purposes of this opinion, we assume, but do not decide, that the deceased was an employee. Nevertheless, we conclude that the deceased was not acting within the course and scope of his employment. Consequently, we affirm.
        The case was tried solely on "Stipulated Facts" in which the parties "stipulated to the following facts." We quote the pertinent part of the stipulation. The reader will note that in some instances the parties are not stipulating to "facts." Instead, the parties are stipulating to what the record would show if certain witnesses testified and to what conflicting testimony would show if certain witnesses testified.
                1.        On July 16, 1985, [deceased] was employed by Jordan Foundation Equipment & Supplies, Inc. (hereinafter referred to as "Employer"). Louis Jordan, Sr. testified in his deposition that [deceased's] duties as Vice-President of the company included taking orders, packing them, shipping them and delivering them, as well as purchasing supplies and equipment. He testified [deceased] "did whatever was necessary."
        
        2.        [Deceased] was Vice-President and second in command at Jordan Foundation Equipment & Supplies, Inc., with his father, Louis F. Jordan, Sr. being President of the corporation. The corporation had five employees on July 16, 1985.
 
                3.        [Deceased's] employer's business consists of selling foundation drilling equipment and parts and supplies for such equipment. The company is incorporated and 100% of the stock is owned by Edna M. Jordan, mother of [deceased]. (Louis F. Jordan, Sr. has died since the filing of this lawsuit.)
 
                4.        [Deceased's] duties for his employer involved the purchase and resale of parts and supplies, including packing, shipping and/or delivering such parts and supplies. His duties required traveling on behalf of the company when necessary for purchasing, selling, delivering or inspecting supplies or equipment.
 
                5.        On July 9, 1985, [deceased] traveled to Italy to receive training to assist his employer in selling equipment manufactured by Soilmec Drilling and Foundation Equipment (hereinafter referred to as "Soilmec"). He was also there to learn more about the equipment and to sell more of the Soilmec products.
 
                6.        [Deceased] arrived at the Milan, Italy airport on Tuesday, July 9, 1985, at approximately 9:00 a.m. He was met there by an employee of Soilmec who provided him transportation to Cesena, Italy where he checked into the Hotel Casali located in Cesena, Italy. The hotel had been arranged and paid for by Soilmec. Soilmec's facility was located in Cesena, Italy.
 
                7.        [Deceased] rented an Alfa Romeo automobile from Avis Rent A. Car System, Inc. from an Avis rental agency located in Rimini, Italy on Friday, July 12, 1985. Rimini, Italy is a resort city on the Adriatic Sea which is located approximately 12.4 miles southeast of Cesena.
 
                8.        On July 15, 1985, [deceased] was at the Soilmec plant on behalf of his employer from approximately 8:30 o'clock a.m. until approximately 5:00 o'clock p.m., at which time he left in a rental automobile to return to his hotel. At the time [deceased] had left the Soilmec facility on the afternoon of July 15, 1985, all of his business with Soilmec had been concluded for the day.
 
                9.        The testimony is conflicting as to [deceased's] scheduled activities following July 15, 1985.
 
                    A.        Giuliano Garavelli, Sales Director for Soilmec testified that there was a plan for [deceased] to visit a job site away from Cesena on July 16, 1985. He believed that a Soilmec employee was to pick [deceased] up at the hotel the next morning. He thought that was going to be Mr. Raggi, an employee of Soilmec who worked in the Sales Department.
 
                    B.        Mr. Riccardo Raggi testified that [deceased] was to leave for Rome the next day with a Mr. Papperini, an agent or representative for Soilmec. He thought they were to leave in Papperini's car.
 
                    C.        Edna Jordan, mother of the deceased, testified that [deceased] told her that he had to renew the rental agreement because the next morning he had to get up real early and go to a job site.
 
                    D.        Louis Jordan, Sr., father of the deceased, testified that in a conversation with his son he was told that on the day of the accident [deceased] was to go to a certain town to look at equipment and someone was going to ride with him. Jordan, Sr. was also told by his son that on Wednesday, July 17, 1985, his son was scheduled to go to Rome with Mr. Papperini.
 
                10.        On July 15, 1985, [deceased] contacted the Avis agency in Rimini and requested an extension on the automobile rental agreement for another two days. An Avis employee delivered the extension contract to [deceased] at his hotel in Cesena after 5:00 o'clock p.m. on July 15, 1985. [Deceased] drove the Avis employee back to the Avis agency in Rimini. Rimini is located approximately 20 kilometers (12.4 miles) from Cesena. [Deceased] told the Avis employee that he wanted to drive around the Rimini area which is known as the "Adriatic Riviera." He asked the Avis employee where he could go to drink and see some people. The Avis employee told him that there are many bars and restaurants on the Adriatic Coast. These bars do not have any particular time in which they close during the summer in Rimini. In fact they will normally stay open until 3:00 to 4:00 o'clock in the morning. The town of Cesena is more of an industrial town and Rimini on the other hand is known for late-night entertainment.
 
* * *
                11.        On July 16, 1985, at approximately 3:00 o'clock a.m., [deceased] was fatally injured in an automobile collision approximately two kilometers from Cesena, Italy. [Deceased] was alone in his car. The accident was a one-car accident which occurred as [deceased] lost control of the vehicle and hit a metal barrier on the side of the road twice before coming to a halt. [Deceased] was thrown out of the car and sustained serious injuries to his head.
 
                12.        [Deceased] was traveling toward Cesena from Rimini on a roadway leading directly from Rimini to Cesena when the fatal collision occurred. [Deceased] had dropped the Avis employee off in Rimini at approximately 7:00 o'clock p.m. on the night of July 15, 1985. An additional 193 miles had been driven on the car after that time. The only Soilmec facility in that area is located northwest of [deceased's] hotel in Cesena. Rimini is located southeast of his hotel.
In its judgment, the trial court found that deceased was not an employee of Jordan Foundation Equipment & Supplies, Inc. at the time of his fatal injuries and that deceased was not acting within the course and scope of employment with Jordan Foundation Equipment & Supplies, Inc. at the time of his fatal injuries.
        Having assumed for the purposes of this opinion, but not decided, that deceased was an employee of Jordan Foundation Equipment Services, Inc., we focus on the beneficiaries' second point of error. In their second point of error, the beneficiaries contend that the trial court erred in finding deceased was not acting within the course and scope of his employment with Jordan Foundation Equipment and Supplies, Inc. at the time of his fatal injuries. At oral argument, the beneficiaries advised the court that both of their points of error challenged the legal sufficiency of the evidence to support the trial court's challenged findings. A "legally insufficient" point is a "no evidence" point presenting a question of law. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
        Under their second point of error, the beneficiaries advance a two-pronged argument: first, that they established as a matter of law an unrebutted presumption that deceased was acting in the course and scope of his employment when his injury and death occurred; and, second, that as a matter of law deceased's status as an employee is mandated by the "continuous coverage" principle. We begin with the following observations. The Texas Workers' Compensation Act provides in pertinent part:
                The term "injury sustained in the course of employment" as used in the Act, . . .
 
        (4)        . . . 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.
TEX. REV. CIV. STAT. ANN. art. 8309, § 1 (Vernon 1967). The Act must be liberally construed in favor of the employee; it must not be hedged about with strict construction, but must be given a liberal construction to carry out its evident purpose. Yeldell v. Holiday Hills Retirement & Nursing Center, 701 S.W.2d 243, 245 (Tex. 1985). In his treatise on worker's compensation, Professor Larson has written:
        Employees whose work entails travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct depart[ure] on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.
IA A. LARSON, WORKMEN'S COMPENSATION LAW § 25.00 (1985). With these observations before us we consider the beneficiaries' two-pronged argument.
        We address first the presumption argument. Citing the Act, the beneficiaries assert that a fatal injury is compensable under the Act when it occurs in the furtherance of the affairs or business of the employer and the injury is of a kind and character that originated in or related to the employer's business. TEX. REV. CIV. STAT. ANN. art. 8309, § 1 (Vernon 1967). In support of their assertion, the beneficiaries urge that the deceased traveled alone to a foreign country to receive training directly from the manufacturer of equipment that he was responsible for selling on behalf of his employer, that deceased was met at the airport upon his arrival in Italy by an employee of the foreign manufacturer and his daily training activities were scheduled and at the direction of the foreign manufacturer continuing until the day of his death, that on the evening of his death the deceased traveled approximately twelve miles to the Avis agency in a nearby town to extend the rental agreement on his automobile which would be needed for business travel during the following two days, and that the deceased's fatal injury occurred on the roadway directly between his hotel and the Avis agency in the nearby town. Thus, the beneficiaries maintain that these facts alone raise the presumption that deceased was acting in the scope of his employment when his injury and death occurred. See Lumbermen's Lloyds v. Jones, 268 S.W.2d 909 (Tex. 1954); Ashley v. Home Indemnity Co., 685 S.W.2d 780 (Tex. App.--Amarillo 1985, writ ref'd n.r.e.). Therefore, the beneficiaries insist that in the absence of positive evidence to the contrary introduced by the carrier, this presumption compels the legal conclusion that the deceased's death occurred within the scope of his employment as a matter of law. The beneficiaries dismiss the carrier's asserted evidence contrary to the presumption as nothing more than rank speculation as to what the deceased's activities might have been prior to his death. The beneficiaries reason that even the speculation is based on nothing more than the testimony of an Avis employee that Rimini, the town where the Avis agency is located, is well known as a resort area. Hence, the beneficiaries contend that while this fact alone might give rise to various flights of fancy and speculation as urged by the carrier, it does not elevate such speculation to the stature of reasonable inferences and certainly does not constitute positive evidence.
        The carrier, however, argues that a review of the evidence shows the presumption rebutted. The carrier directs us to this evidence. Deceased traveled to Italy six days before receiving his fatal injuries in order to receive training to assist his employer in selling equipment manufactured by Soilmec. He arrived in Italy at the Milan Airport, was met there by a Soilmec employee, and checked into a hotel located in the town of Cesena, Italy. Soilmec's facility was located in Cesena; and, the only Soilmec facility in the area is located to the northwest of the hotel in which deceased was staying. Deceased rented an automobile from an Avis Rental Agency located in Rimini, Italy, three days following his arrival in Italy and three before receiving his fatal injuries. Rimini is a resort city on the Adriatic Sea located approximately 12.4 miles southeast of Cesena. On July 15, 1985, deceased was at the Soilmec plant during the day until approximately 5:00 p.m. At that time, all of his business with Soilmec had been concluded for the day and he left in the rental automobile to return to his hotel. On July 15, deceased contacted the Avis Agency in Rimini and requested an extension on the automobile rental agreement for another two days. An Avis employee delivered the extension contract to deceased at his hotel in Cesena after 5:00 p.m. that evening. Decedent drove the Avis employee back to the Avis Agency in Rimini. (The carrier points out that the record is silent as to deceased's reasons for driving the Avis employee to Rimini.) Deceased told the Avis employee that he wanted to drive around the Rimini area and asked the Avis employee where he could go drink and see some people. The Avis employee told deceased that there are many bars and restaurants on the Adriatic coast. The bars and restaurants normally stay open until 3:00 to 4:00 a.m. Deceased dropped the Avis employee off in Rimini at approximately 7:00 p.m. that evening. Although the record is silent as to deceased's actions over the next 8 hours, the rental car had been driven 193 miles during that 8 hour period after deceased dropped the Avis employee off in Rimini. At approximately 3:00 a.m. on July 16, 1985, deceased was fatally injured in a one-car automobile accident. The accident occurred approximately two kilometers southeast of Cesena. The location of the accident was between Cesena and Rimini; whereas, the Soilmec plant was located to the northwest of Cesena, beyond deceased's hotel.
        We conclude that the carrier rebutted the presumption. We reach this conclusion because the actual stipulated facts (as distinguished from agreement as to what witnesses would testify to) are that the extended rental contract was delivered to deceased's hotel by the Avis employee, not that deceased traveled to Rimini to extend the contract. Moreover, deceased then traveled to Rimini, driving the Avis employee back to that town, and the record is silent as to the reason for this trip. Furthermore, the beneficiaries would have us ignore both the 8 hour period of time after deceased's arrival in Rimini, during which time deceased's actions are unknown, and the unexplained 193 miles which the vehicle was driven after deceased dropped the Avis employee off in Rimini. July 15, 1985, was a Monday. We reason from the stipulated facts identified by the carrier that after work on that Monday, the deceased toured the "Adriatic Riviera" on personal business outside the course and scope of his employment. Therefore, we conclude that as a matter of law the presumption stands rebutted.
        The presumption rebutted, we turn to the second of the beneficiaries two-pronged argument -- the continuous coverage principle. The continuous coverage principle has been recognized in Texas. See Aetna Casualty & Surety Co. v. Orgon, 721 S.W.2d 572 (Tex. App.--Austin 1986, no writ). The beneficiaries maintain that "[t]his principle embraces the concept that employees whose work entails travel away from their employer's premises are within the course of their employment continuously during the trip and injuries arising out of the necessity of sleeping in hotels, eating in restaurants, traveling, etc., are therefore compensable," citing Larson, Workmen's Compensation Law, § 25.00 (1985); Aetna Casualty, 721 S.W.2d 57. Again citing Aetna Casualty, the beneficiaries assert that "[t]he continuous coverage principle prevails unless the Defendant adduces evidence showing a distinct departure by the employee on some personal errand at the time of his injury or death." Therefore, we reach the question of whether the carrier adduced evidence showing a distinct departure by the employee "on some personal errand at the time of his injury or death." We conclude that the carrier adduced evidence of a distinct departure by the employee on some personal errand at the time of his death. As discussed above in disposing of the beneficiaries' presumption argument, we conclude that the stipulated facts identified by the carrier show that after work on a Monday the deceased toured the Adriatic Riviera on personal business outside the course and scope of his employment and was so engaged at the time of his death. Consequently, we conclude that the continuous coverage principle does not mandate deceased's status as an employee. In reaching this conclusion we find two decisions of our sister courts of appeals instructive. See Hardware Mutual Casualty Co. v. McDonald, 502 S.W.2d 602 (Tex. Civ. App.--San Antonio 1973, writ ref'd n.r.e.); Walker v. Texas Employers' Insurance Ass'n, 443 S.W.2d 429 (Tex. Civ. App.--Fort Worth 1969, writ ref'd). In Hardware Mutual, we learn that after reviewing the definition of "course of employment" set forth in article 8309, section 1 of the Act, the court tells us:
        Here deceased was in Kerrville on his employer's business and, under the rule set forth in Shelton, was within the scope of his employment while sleeping and eating. However, his drowning did not arise from either of these activities. Appellee urges that it was within the scope of his duties to entertain prospective customers, which would include taking a customer fishing. Nevertheless, there is no evidence whatsoever in this record that deceased was with a customer at the time in question. In fact, the evidence is undisputed that he was alone the entire evening, and there is no evidence from any of deceased's supervisors that he was to call on any customer in Kerrville. He had never fished at this river before, either with or without a customer.
 
                The undisputed evidence establishes that deceased had returned to the cafe after eating his evening meal and making several telephone calls. On this return to the cafe, he was on a purely personal mission of his own. There is no explanation of why he subsequently determined to go down to the river alone and without permission from the owner. It is clear, however, that such activity did not have anything to do with furtherance of his employer's business, and his subsequent drowning was not of a kind and character of injury that had to do with and originated in the employer's work or business.
Hardware Mutual, 502 S.W.2d at 604-05.
        In Walker, we learn that a traveling truck driver paid a late night visit to the motel room of a stranger in the same motel in which the driver was staying while on an overnight trip for his employer. The driver walked in the stranger's room while a commotion was in progress and was shot. In disposing of the "course of employment" issue, the court in Walker states:
        A late night visit to the room of a person whose sex or name he did not know for the purpose of having a drink was not a risk or hazard arising out of his employment. We cannot see that his visit, under his own testimony, could be an incident of the employment, or that the injury had to do with and originated in his employer's business.
 
* * *
        Plaintiff's testimony shows that his visit to the room down the hall did not have anything to do with furtherance of his employer's business; that his injury was not of a kind and character that had to do with and originated in the employer's work or business. Neither Pier nor his unnamed friend had any connection whatever with plaintiff's employer or its business.
 
        Plaintiff's own testimony shows conclusively that at the time of the injury he was engaged in a purely personal mission of pleasure which was in no way incident to his employment.
Walker, 443 S.W.2d at 431-32. In the present case, we conclude that at the time of his death the deceased was on a personal mission of pleasure which was in no way incident to his employment. We reach this conclusion because we find no merit in the beneficiaries' position that deceased traveled approximately twelve miles to the Avis agency in a nearby town to extend the rental agreement on his automobile which would be needed for business travel during the following two days and that deceased's fatal injury occurred on the roadway directly between his hotel and the car rental agency in the nearby town. Indeed, it blinks reality to ignore the unaccounted for 8 evening and night hours between deceased's departure from the rental agent in Rimini and the deceased's fatal injury and to ignore the unexplained 193 miles which the rented automobile was driven during that 8 hour period. Consequently, we conclude that as a matter of law the continuous coverage principle does not apply to the deceased.
        Having held as a matter of law that there is no merit in either the beneficiaries' presumption argument or the beneficiaries' "continuous coverage" argument, we conclude that the trial court did not err in finding that deceased was not acting within the course and scope of his employment with Jordan Foundation Equipment and Supplies, Inc. at the time of his fatal injuries. In deciding this part of the beneficiaries' "no evidence" point and in reaching this conclusion, we treat the finding as a fact finding and not a conclusion of law. Whether the employment of a workman injured while engaged in a particular task is in the usual course of the business or occupation of his employer is ordinarily a question of fact. To make such issue a question of law, the testimony must not only be without contradiction, but must be so conclusive that reasonable minds cannot differ as to its effect. Croswell v. Commercial Standard Ins. Co., 56 S.W.2d 918, 920 (Tex. Civ. App.--Beaumont 1933, writ ref'd). Therefore, in deciding this part of the beneficiaries' "no evidence" point and in concluding that the trial court did not err in finding that deceased was not acting within the course and scope of his employment at the time of his fatal injuries, we considered only the evidence and the inferences tending to support the trial court's finding and disregarded all evidence and inferences to the contrary. Garza, 395 S.W.2d at 823. It is fundamental that the trial court's finding must be upheld by us if there is more than a scintilla of evidence in support thereof. Stedman v. Georgetown Savings and Loan Ass'n., 595 S.W.2d 486, 488 (Tex. 1979). We overrule the beneficiaries second point of error. The beneficiaries failing in their burden to show course and scope of employment, it follows that we must affirm the trial court's judgment.
        In light of our conclusion that at the time of his death the deceased was on a personal mission of pleasure which was in no way incident to his employment, we need not reach the question of whether the manner of the parties' stipulation required the trial court to become a fact finder. In a nonjury case, the trial court is the judge of the credibility of the witnesses and of the weight to be given their testimony, since he has the opportunity to observe the demeanor of the witnesses on the stand and he may believe all, none, or part of the witnesses' testimony. The trial court's findings of fact will not be disturbed on appeal if supported by any evidence of probative force. Fortner v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 687 S.W.2d 8, 12 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). The qualifications and credibility of witnesses are matters to be evaluated by the fact finder. Great American Insurance Co. v. Murray, 437 S.W.2d 264 (Tex. 1969). In a nonjury trial the judge is the trier of fact and it is his prerogative and responsibility to weigh the credibility and the proof of the evidence. Bormaster v. Henderson, 624 S.W.2d 655, 659 (Tex. App.--Houston [14th Dist.] 1981, no writ). The question not reached, we do not need the assistance of a fact finder to determine if the deceased extended the automobile rental period for business travel on behalf of the employer in order to inspect job sites at which the subject equipment was in use. We do not need such fact determination in this "no evidence" case because our record contains more than a scintilla of evidence that on the occasion of his death, the deceased took both himself and the rented vehicle out of the course and scope of his employment and embarked on a personal mission of pleasure which was in no way incident to his employment.
 
 
        Affirmed.
 
                                                  
                                                  WARREN WHITHAM
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00787.F
 
 
File Date[01-02-89]
File Name[880787]