The AGRICULTURAL INSURANCE CO., Petitioner, v. Henry Harold DRYDEN, Respondent, 398 S.W.2d 745

STEAKLEY, Justice. Henry Harold Dryden, Respondent, was injured on his way to work when his automobile turned over after a sudden swerve to avoid hitting a dog. The question to be decided is whether he was in the course of his employment at such time and hence entitled to workmen’s compensation benefits. The jury found that he was; the judgment of the trial court based thereon was affirmed by the Court of Civil Appeals, one Justice dissenting. 388 S.W.2d 455. We hold that under

Section lb of

Article 8309, Vernon’s Annotated Texas Civil Statutes, Dryden was not in the course of his employment at the time of his injury. Dryden was employed as the foreman or pusher of a carpenter crew and when directed to do so was required as one of his duties to transport in his personal automobile from work site to home to work site certain power tools owned by his employer and used by the carpenter crew. The tools weighed between 180 and 200 pounds. Dryden received an extra twenty-five cents an hour as foreman.

It was necessary for Dryden to arrive at the work site fifteen or twenty minutes earlier in order to have the tools unloaded and ready for use by the carpenters at the time for them to commence their work. On the occasion in question, Dryden left his home about 5:15 a. m. for a new job site in Nederland, Texas. He was transporting the tools at the time and had left his home the required few minutes earlier. He traversed the route he would have used had he not been required to transport the tools.

There is no suggestion in the record that Dryden would have sought means of getting to and from work other than driving his personal automobile had he not been assigned the duty of transporting the tools.

Section 1 of

Article 8309, V.A.T.C.S., as material here, provides that the term “ ‘injury sustained in the course of employment’ * * * 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.”

Section lb of

Article 8309 was added by the Legislature in 1957; it provides: “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.

Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.” We held in Texas General Indemnity Co. v.

Bottom (Tex.Sup.), 365 S.W.2d 350 (1963): “When the provisions of

Section lb are read in connection with those of

Section 1 and our decisions construing and applying the same, we think the Legislature intended thereby to circumscribe the probative effect that might be given to the means of transportation Or the purpose of the journey rather than to enlarge the definition found in

Section 1.” In Janak v. Texas Employers’ Insurance Ass’n (Tex.Sup.), 381 S.W.2d 176 (1964), we analyzed

Section lb as follows: “Sec. lb,

Article 8309, enacted in 1957, has two parts. The first part declares injuries during travel to be in the course of employment, and therefore compensable, only when transportation is (1) furnished as a part of the contract of employment, or (2) is paid for by the employer, or (3) is under the control of the employer, or (4) when ‘the employee is directed in his employment to proceed from one place to another place.’ ” It necessarily follows that an injury occurring during transportation cannot be the basis of a claim that such was sustained in the course of employment, as required by

Section 1 of

Article 8309, unless one of the prerequisites enumerated in the first sentence of

Section lb is present. It is undisputed that transportation was not furnished Dryden as a part of his contract of employment; that the transportation was not paid for by his employer; and that the transportation was not under the control of the employer. The final preliminary condition, that the employee be directed in his employment to proceed from one place to another place, is likewise absent. All of Dryden’s travel was going to and from work. His subjection to traffic hazards while so driving was not the result of, or caused by, any direction of his employer that he proceed from one place to another.

There was no special mission assigned Dryden which required any travel by him apart from, or in addition to, his regular and personal transportation to and from work. Cf. Whisenant v. Fidelity Casualty Company of New York, 354 S.W.2d 683 (Tex.Civ.App.1962, writ ref., n. r. e.). We recognize that language in cases such as American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957), Knipe v. Texas Employers’ Insurance Assn., 150 Tex. 313, 239 S.W.2d 1006 (1951), and Jones v. Texas Indemnity Ins.

Co., 223 S.W.2d 286 (Tex.Civ.App.1949, writ ref.), may be considered generally supportive of the proposition that it cannot be said as a matter of law that Dryden was not in the course of his employment within the requirements of

Section 1 of

Article 8309. However, these decisions were before the enactment of

Section lb and we do not reach the problem of these cases since

Section lb precludes the qualification of Dryden’s injury as one sustained in the course of his employment. The judgments of the Court of Civil Appeals and of the trial court are reversed, and judgment is rendered for Petitioner.