






Hershel Helen McNamara, Individually and as Independent Executrix of the Estate of Paul Tom McNamara
















IN THE
TENTH COURT OF APPEALS
 

No. 10-99-063-CV

     HERSHEL HELEN McNAMARA,
     INDIVIDUALLY AND AS
     INDEPENDENT EXECUTOR OF THE
     ESTATE OF PAUL TOM McNAMARA,
                                                                         Appellants
     v.

     COY BLANN MATHIS, ET AL.,
                                                                         Appellees
 

From the 74th District Court
McLennan County, Texas
Trial Court # 97-1759-3
                                                                                                               
                                                                                                         
O P I N I O N
                                                                                                               

      This is an appeal from a judgment granting a motion for summary judgment.  The motion
was based on the grounds that Coy Mathis was not an employee of Limestone Products
Distribution, Inc. or in the alternative, that he was not in the course and scope of his
employment at the time of the incident which is the basis of this suit.  We are asked to
determine if the summary judgment motion, pleadings and evidence established either defense
as a matter of law.
FACTUAL BACKGROUND BASED ON THE ALLEGATIONS
      Mathis is a truck driver.  It is undisputed that three years prior to the accident involved in
the present suit, he had been an employee of Limestone.
As An Employee
      As an employee, Mathis drove a truck owned by Limestone.  He hauled exclusively
Limestone’s materials to Limestone’s customers.  He was not required to go to the shop every
day.  He would call in to see if there were materials to be hauled and the particulars of the
deliveries.  He was paid based upon a percentage of the price of the product that he delivered. 
Limestone controlled the pick-up point, the route and the delivery point.  Limestone controlled
the price charged for the materials delivered.  Limestone furnished the truck and paid all
insurance, maintenance and fuel cost.  To get paid for the loads hauled, Mathis was required to
present a load ticket to Limestone.  There were several locations where load tickets could be
turned in at Limestone for further processing.  Limestone withheld the usual taxes from his
check.  There was no guaranteed or minimum pay.  Pay was based solely on deliveries.
After He Purchased a Truck
      Roughly three years prior to the accident involved in this suit, Mathis purchased a truck
from Limestone.  He can haul for anyone.  He calls Limestone and is told where he can pick-up materials and where they need to be delivered.  He can use any route he desires.  He
usually uses the route used by employee drivers.  Limestone contends this is because it is the
shortest route.  He is still paid a percentage of the price charged for the materials he delivers
but the percentage is much higher.  He has an arrangement with Limestone for maintenance,
fuel and insurance.  He still must turn in load tickets to get paid.  Limestone does not withhold
any taxes and reports payments to Mathis via IRS form 1099.  If Mathis’s truck is not
operable, he uses one of Limestone’s trucks.  He is paid at the lower “employee” rate when
using Limestone’s truck.  On a prior occasion, when Mathis’ truck became unreliable,
Limestone told him that unless he obtained a more reliable truck, he would no longer be able
to haul materials for Limestone.  He thereafter bought his second truck from Limestone. 
Limestone required him to purchase an accidental death and disability policy.
The Accident
      Paul McNamara was killed when Mathis turned left in front of him.  McNamara was
riding a motorcycle.  Mathis was driving his personal vehicle, not his truck.  Mathis was
making a left-hand turn into the business premises of Limestone.  It is undisputed that Mathis
had a friend with him who was an employee of Limestone.  It is also undisputed that it was a
holiday and they were socializing and decided to go to Limestone “to see what was going on at
the shop” and turn in load tickets.  The tickets were due to be turned in that day so that
Limestone could pay the drivers on the usual time interval.  It is disputed whether Mathis had
any tickets that he was going to turn in on this trip but it is undisputed that his passenger did
have some tickets that he wanted to deliver.
PROCEDURAL BACKGROUND
      Hershel Helen McNamara, Individually and as Independent Executrix of the Estate of Paul
Tom McNamara (jointly “Helen”), sued Limestone and Mathis alleging that Mathis’s
negligence was the proximate cause of McNamara’s death.  Helen alleged that Mathis was an
employee engaged in the course and scope of his employment at the time of the accident.
      Limestone moved for summary judgment contending that Mathis was an independent
contractor or in the alternative that he was not engaged in the course and scope of employment
at the time of the accident.  The trial court granted the motion but did not specify the grounds
upon which it was granted.
      Helen’s claims against Limestone were severed from the claims remaining against Mathis. 
Helen brings this appeal claiming that judgment was not proper on either ground raised by
Limestone in its motion for summary judgment.
SUMMARY JUDGMENT BURDENS AT TRIAL
      The summary judgment movant bears the burden to prove that no genuine issue of material
fact exists and that the movant is entitled to summary judgment as a matter of law.  Tex. R.
Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); 
Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 425 (Tex. App.—Waco 1997, writ denied). 
If the movant is the defendant, the movant must conclusively negate at least one of the
elements of the non-movant's cause of action or conclusively establish every element of an
affirmative defense.  Kinnard v. Circle K Stores, Inc., 966 S.W.2d 613, 616 (Tex. App.—San
Antonio 1998, no pet.).
STANDARD OF REVIEW ON APPEAL
      On appeal, we are limited to a review of whether the judgment was proper based upon the
motion, the evidence and the pleadings properly before the trial court.  See Tex. R. Civ. P.
166a.  We are further limited by the scope of the issues and arguments properly presented on
appeal.  See id. 166a(c).
      When determining whether a material fact issue exists, we must accept as true all evidence
favorable to the non-movant.  Nixon, 690 S.W.2d at 548-49; Delta Air Lines, Inc., 949
S.W.2d at 425.  Also, we must resolve all doubts and indulge every reasonable inference in
favor of the non-movant.  Nixon, 690 S.W.2d at 549; Delta Air Lines, Inc., 949 S.W.2d at
425.  The purpose of a summary judgment proceeding is to determine if there are any
questions of fact to be tried, not to try the cause by weighing the evidence or determining its
credibility; or trying the cause by affidavit or deposition.  Gulbenkian v. Penn, 151 Tex. 412,
252 S.W.2d 929, 931 (1952); Walls v. First State Bank of Miami, 900 S.W.2d 117, 123 (Tex.
App.—Amarillo 1995, writ denied).  Summary judgment is not intended to deprive the litigants
of their right to a full hearing on the merits of any real fact issue.  Kim v. State Farm Mut.
Auto. Ins. Co., 966 S.W.2d 776, 778 (Tex. App.—Dallas 1998, no pet.).
EMPLOYEE OR INDEPENDENT CONTRACTOR
       The issue of whether a person is an employee or independent contractor is a frequently
litigated issue.
The test to determine whether a worker is an employee or an independent contractor is
whether the employer has the right to control the progress, details, and methods of
operations of the employee's work.  Newspapers, Inc. v. Love, 380 S.W.2d 582,
585-90 (Tex. 1964).  This same test applies whether the claim arises at common law
or under workers' compensation.  Elder v. Aetna Casualty & Sur. Co., 149 Tex. 620,
623, 236 S.W.2d 611, 613 (1951).  The employer must control not merely the end
sought to be accomplished, but also the means and details of its accomplishment as
well.  Travelers Ins. Co. v. Ray, 262 S.W.2d 801, 803 (Tex. Civ. App.—Eastland
1953, writ ref'd).  Examples of the type of control normally exercised by an employer
include when and where to begin and stop work, the regularity of hours, the amount
of time spent on particular aspects of the work, the tools and appliances used to
perform the work, and the physical method or manner of accomplishing the end
result.  See United States Fidelity and Guar. Co. v. Goodson, 568 S.W.2d 443, 447
(Tex. Civ. App.—Texarkana 1978, writ ref'd n.r.e.).
Thompson v. Travelers Indemnity Co. of Rhode Island, 789 S.W.2d 277, 278-279 (Tex. 1990).
      The evidence presented at the summary judgment hearing does not conclusively establish
that Mathis is not an employee of Limestone.  While there is ample characteristics of an
independent contractor relationship, there is some evidence that Limestone still controls
enough of the aspects of the manner in which Mathis operates in delivering the materials for
Limestone so as to raise a fact question on the issue.  Thus, on the record before us we cannot
say that it would have been proper for the trial court to hold that as a matter of law Mathis was
not an employee of Limestone.  However, this was not the only ground upon which Limestone
sought summary judgment, and the judgment did not specify the ground on which it was
granted.  Thus, we must determine if judgment was proper on the other ground presented in
Limestone’s summary judgment motion.
COURSE AND SCOPE OF EMPLOYMENT
      Whether an employee is engaged in the course and scope of employment is also a
frequently litigated question.
The test to determine an employer's liability for the acts of its employees is whether
on the occasion in question, the master has the "right and power to direct and control
[the servant] in the performance of the causal act or omission at the very instance of
the act or neglect."  American Nat'l Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370,
373 (Tex. 1936).  In order to meet this test, the employee's act must (1) fall within the
scope of the employee's general authority, (2) be in furtherance of the employer's
business, and (3) be for the accomplishment of the object for which the employee was
hired.  Chevron U.S.A., Inc. v. Lee, 847 S.W.2d 354, 355 (Tex. App.—El Paso
1993, no writ).
Direkly v. ARA Devcon, Inc., 866 S.W.2d 652, 654, (Tex. App.—Houston [1st Dist.] 1993,
writ dism’d, w.o.j.).
As a general rule, an employee is not in the course and scope of his employment while
driving his own vehicle to and from his place of work, absent other factors.  Wilson
[v. H.E. Butt Grocery Co.,] 758 S.W.2d [904,] at 907 [(Tex. App.—Corpus Christi
1988, no writ)]; London [v. Texas Power & Light Co.], 620 S.W.2d [718,] at 720
[Tex. Civ. App.—Dallas 1981, no writ); American Nat. Ins. Co. v. O'Neal, 107
S.W.2d 927 (Tex. Civ. App.—San Antonio 1937, no writ).  However, an exception to
the general rule exists where an employee has undertaken a special mission at the
direction of his employer or is otherwise performing a service in furtherance of the
employer's business with the express or implied approval of the employer.  Gebert v.
Clifton, 553 S.W.2d 230, 232 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ
dismissed).
Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex. App.—El Paso 1993, no writ).
      The strongest inference that can be drawn from the summary judgment evidence is that if
Mathis was an employee, he was traveling between his home and his work for the purpose of
performing a normal function of his employment, the delivery of load tickets.  Because the
delivery of load tickets was a normal part of Mathis’s employment, the normal travel to and
from his place of employment was not a special mission.
  There were multiple locations where
load tickets could be delivered.  While Limestone may have determined a time frame by which
they wanted the load tickets turned in for processing, they did not control the manner and
means of the delivery process.
SUMMARY
      Thus, to restate, in this case, the strongest inference that can be drawn from the summary
judgment evidence is that Mathis was traveling to his usual place of employment to perform a
normal function of his job upon his arrival.  The trial court did not err in granting summary
judgment on this ground.  The trial court’s judgment is affirmed.


                                                                         TOM GRAY
                                                                         Justice

Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Affirmed
Opinion delivered and filed October 18, 2000
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