#### AMERICAN GEN. INS. CO. v. JONES et al.

No. A-3808.

Supreme Court of Texas.

Feb. 18, 1953.

Vinson, Elkins & Weems and C. Ml. Hightower and B. Jeff Crane, Jr., Houston,, for petitioner.

Bliss Daffan and W. B. Irwin, Jr., Houston, for respondents.

WILSON, Justice.

In this workmen’s compensation case we~ must first decide whether there is any evidence to support a jury finding that the deceased was acting within the scope of his. employment at the time of his death and', then determine the admissibility of certain., testimony.

The rules of law are familiar. The Court of Civil Appeals has affirmed a trial court’s, judgment for the claimant in an opinion-reported at 250 S.W.2d 663.

As a factual defense the carrier vigorously contended that the deceased was intoxicated, but it did not gain the point before-the jury.

*503Deceased was a nightwatchman for the Gulf Bitulithic Company which company had a contract to construct a portion of a highway. He was alone at the time of the accident. His body was found lying close to his overturned automobile on the shoulder of the highway near a construction barricade erected to stop traffic. There is no direct proof as to what he was doing, where he was going, what his mission was, or why he was driving at the time of the accident. He was killed during working hours and upon the employer’s premises.

The evidence is uncontroverted that up until a few weeks before the accident the employer had machinery stored near an overpass on.the construction job. Deceased had the duty of watching this machinery and also had the duty of watching a 'batching plant some distance away. The spot where he was killed lay on one route between these two places. His duties then included traveling back and forth and it was all right with the employer for him to use his car.

The “no evidence” point arises from testimony of the witness Homesley (job superintendent) that shortly before the accident a second watchman had been employed to watch the equipment in the vicinity of the overpass. The carrier contends that this testimony establishes that all of the duties of the deceased were “confined solely” to watching at the plant site.

The carrier also contends that the employee is 'bound by the testimony because the employee called the job superintendent to the stand. We may say here that where the employee calls an agent of the employer to prove rate of compensation and where the carrier on cross-examination opens up the different subject of scope of employment, the employee is not bound by the testimony on scope of employment under the rule that one calling a witness vouches for his credibility. On that point the carrier made the witness its own. Also because of the method of calculating premiums there are elements of adversity in the three-way relationship of employee-employer-carrier which would make harsh and unfair a rule requiring that all of such a witness’ testimony 'be binding on an employee.

Absent the testimony of the witness Homesley, there is ample evidence to support a finding that the deceased was within the scope of his employment. He was on the employer’s premises during working hours traveling a route which under his first employment he had been employed to travel.

Considering Homesley’s testimony most favorably to the employee, it cannot be said that *all*of his duties were confined to the batching plant, although the contract of hire may have confined the *watching*duties solely to the- batching plant. The witness testified:

> “Q. Just what did you tell Mr. Wheat about his duties thereafter as night watchman? A. I told Mr. Wheat his .duties were "to watch the plant 'site and all the equipment around the plant site from seven o’clock in the afternoon until five in the morning. That is ten hours a night.

> “Q. Did you tell him that Mr. Hilton had been placed in charge in guarding the equipment other than at the plant site? A. Yes, sir; he was informed of that.

> “Q. Mr. Wheat was by you? A. Yes, sir.

> “Q. Did you also inform or tell Mr. Wheat that after that time he wouldn’t be required and you didn’t want him to watch or guard the machinery down in the general vicinity of the Wye proper ? A. That’s right, yes, sir.

> “Q. Did you tell Mr. Wheat that his duties would be confined solely to the plant site? A. I did, yes, sir.”

We do not think that testimony that the machinery to be watched was located only at the batching plant established as a matter of law that deceased could not leave the batching plant for any purpose without 'being outside the scope of his employment. There had been thefts from this job. A nightwatchman might need to go for help or to communicate with other nightwatchmen in connection with his work. The above testimony when considered as a *504whole is fairly susceptible to the construction that the duty referred to in the last question quoted was the “watching” duty. The deceased was not violating an instruction in leaving the batching plant. There is no testimony of any instructions not to leave the batching plant for any purpose. The carrier in its brief admits this:

> “ * * * This is not a case in which the employee has violated his employer’s instructions as to the time, manner or place in which to perform his work. This is a case in which the employee has departed from the only place at which his work would be performed, thereby placing himself outside the sphere of his employment as expressly ■fixed by his contract of hire.”

The problem becomes: Does the testimony establish as a matter of law a contract of hire requiring the deceased to remain at the batching plant and nqt leave it for any purpose? We think not. Home-sley did not so testify. The deceased was killed on the premises during his working hours. -The point is that even though un-controverted the testimony relied on by the carrier is not so1 dear, unambiguous and positive as to establish as a matter of law that any -leaving of the immediate area of the batching plant by the deceased'for any purpose1 took him outside of his employment.

On the other hand, this same testimony when considered in the light of the testimony offered also on intoxication, under Sec. 1, art. 8309, R.C.S., Vernon’s Ann. Civ.St. art. 8309, § 1, the physical circumstances of the accident, and in the absence of affirmative proof that the deceased was on his employer’s business — this same testimony would support a jury verdict that the deceased was outside the scope of his employment. So on the proof before us the matter became a fact issue for the jury.

The carrier complains of the admission of testimony of Justice of the Peace Newsom giving the content of conversations between Newsom and the deceased.1 In these conversations the deceased discussed with the witness the performance of the work. This was offered for the purpose of showing that his duties consisted of patrolling the highway and taking care of the flares on the highway. While most of these conversations occurred at a time prior to the change in his duties (as testified by the Job Superintendent Homesley),.at least one of them was about four days before the accident. The effect of these conversations was to establish that the deceased had discussed duties with Newsom which included patrolling the road and looking after the flares on the highway. Thus the testimony of the deceased as to the scope of his employment is admitted on that issue.' This is out-of-court and unsworn conversation related by'the witness Newsom and offered to allow the deceased to testify through Newsom. Clearly it is hearsay testimony offered for the purpose of proving the truth *505of the content of the out-of-court statement. The claimant says that it was offered to prove mental state. These conversations were not made about the very trip on which he was injured and offered as declarations of his immediate purpose. on that night. The mental state of the deceased on other •occasions is not in issue. These conversations were offered on scope of employment.

The claimant also contends that these •conversations were a part of the res gestae. The latest of these conversations occurred four days before the accident. They are mot relevant to the happening of the accident but are relevant only on scope of employment. The employment contract had been in existence for 'some time. They are •clearly not res gestae to the accident. New-som might' testify to what he saw and ob-served- but not to the content of conversation. Williams v. Texas Employers Ins. Ass’n, Tex.Civ.App., 218 S.W.2d 482. The ■death of the declarant of hearsay does not in itself render admissible testimony which ■would otherwise be excluded. McCormick & Ray, Texas Law of Evidence, Sec. 359, •p. 447. ' '

The admission in evidence of the conversations which occurred prior to the •change of duties would not require reversal since before the change of duties the deceased was called upon to ride back and forth between the overpass and the batching plant. However, it is clearly established that the last conversation occurred only four days before the accident and was offered to prove that *at that time*the deceased ■said his duties included patrolling the highway and watching the flares. It amount's to the -deceased testifying that his duties were not confined to the batching plant. On the point of watching flares and patrolling the highway, it is directly in conflict with other •testimony of Homesley. .

Since scope of employment was the. vital issue on which the case was fought, and •since there was so little direct evidence on this point other, than the testimony of the witness Homesley, we have concluded that the jury probably gave Newson’s hearsay testimony controlling effect. Considered from-the carrier’s viewpoint, there was a clear conflict between Homesley’s testimony and the hearsay declarations proved through Newsom. The jury must reject one or the other. Newsom, whose credibility was not under attack, was a local public official having no interest in the outcome of the trial and his testimony was calculatéd to carry weight' with the jtiry. 'If the jury let their decision' turn 'upon hearsay testimony, their verdict was of course improper. Under these circumstances it is our opinion that his hearsay testimony was reasonably calculated to caúse, and probably did cause, the rendition of an improper verdict.

Due to possible .changes in the circumstances-of the claimant between trials-and therefore the probability -that the evidence on lump-sum..settlement will, not be the same on -a second trial, we have not considered the carrier’s point III.. It is. not necessary that we consider point IV on improper argument. ' ' ■

Accordingly the judgments of the trial •Court and that'of the'Court of Civil Appeals are reversed and the cause is remanded’ to the trial court for another trial. :Rule 503, Texas Rules of Civil Procedure. Costs 'are taxed against respondent.

■GARWOOD' and CULVER, JJ;, not sitting. ' ‘ ■

1

. (Excerpt from testitaony of the witness Newsom)

> “Q. Did you talk with him on those occasions? A. Yes, sir; I have talked' with him several times. ■ •

> “Q. What was the substance of the conversations you had with him ? A. Well, he would talk about the gas being missing and flares knocked off of the roads, and he said he was trying his-best to prevent that. He was patrolling, too, and he said he appreciated my help, that with my help and his help we might catch same of them.

> “Q. Did that happen on a number of . occasions? A. Well, two, or three times we had talked about those things, two or three, times. ,

> “Q. Was it around about close to the time that you knew of his death? A. I believe the last time I talked with Mr. Wheat before his death was—

> “Defendant’s Bill of Exception No.

> “Mr.. Hightower; Your Honor, my objection .will go to all conversations?

> “Court: Yes, sir. I ■ overrule the objection.

> “Mr. Hightower: .Thank you.

> “A. , Approximately four days before his death we had talked together,

> “Q. Was he on the project in his Eord then? A. He was right around the Wye, where the Wye is now, down in here about where this black-top .road is. We stopped right along here one night and talked for about five minutes.” (Indicating on Plaintiffs’ Exhibit No. 1).