United States Fidelity & Guaranty Co. v. Flanagan

O’QUINN, Justice. Appellee, by next friend, brought this suit against appellant to set aside an order of the Industrial Accident Board of the state of Texas, and to recover compensation for an alleged compensable injury. Trial resulted in a judgment for appellee, and the case is before us on appeal. The judgment will have to he reversed because appellee failed to allege in his petition that -the Industrial Accident Board denied him compensation, and that he gave due notice of his intention not to abide said ruling and to file suit in a court of competent jurisdiction to set said order and ruling of said board aside, and to recover compensation. The proof was ample to show this fact, hut in the absence of pleading was unavailing. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084. It is insisted that under the undisputed facts, the judgment should be reversed and here rendered for appellant. We overrule this contention. We think the facts show that appellee is entitled to compensation. The facts are: The Service 'Drug Company in the city of Beaumont was the employer, appellee, Frank Flanagan, was the employee, and appellant the insurance carrier. The record reflects, without dispute, that Flanagan applied to the Service Drug Company for employment as a delivery boy. He was given the job. In order to obtain the employment, he was required to and did provide his own bicycle as a means of transportation in carrying and delivering parcels as required by his employer. He had to keep his bicycle in good repair, and have same in readiness when called for service. His employer was not to furnish and did not furnish any place for storage or safe-keeping of the bicycle when the same was not in use by appellee for his master. Flanagan, who lived some 2½ miles from the drug store, in order to repair the bicycle and safely keep same at hand in readiness for use, had to take it to his home and there keep same at night. He was required to work ten hours per day and seven days per week. He usually got off from work about 10 p. m. He delivered packages where directed and frequently delivered packages while en route to his home after quitting time, but was not doing so at the time he was injured. In going home from work, he traveled a route of his own selection, but usually went the most direct route, and was so traveling the night he was injured. He had gotten within two blocks of his home, when he was run into by an automobile and injured. He received $6.50 per week pay. It is certain, we think, under the facts, that the injury received by appellee [447] had its origin in and arose out of his employment, and was received while engaged in the furtherance of the business of his employer. Maryland Casualty Co. v. Smith (Tex.Civ.App.) 40 S.W.(2d) 913. The judgment is reversed and remanded for another trial.