Precedents: The Wolves and the Rabbit

A claimant seeking to recover workers’ compensation benefits under the Texas Workers’ Compensation Act must, among other things, prove that she suffered an injury while in the course and scope of employment. That is to say, the claimant must establish that she was injured while performing an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.

Injuries that occur while the employee has deviated from the course and scope of her employment may not be compensable. Minor deviations are generally covered; major deviations are not. At what point does a deviation become so distinct that she can be considered to have left her employment and the coverage?

Two cases, one involving wolves and the other concerning a rabbit, illustrate the difference.

In September 1928, Lucien Shook was employed by the Braden Company as a pumper on the Stinnett lease in the northwestern part of Eastland County. The lease was in a sparsely settled, rough, mountainous country. Shook lived alone in a two-room shack on the lease. This shack was owned by the employer, and was erected as a place for Shook to live. Near his shack was a producing oil well, the only well on the lease. Oil was pumped from this well by an engine using natural gas for fuel, and but slight attention was required to keep same in operation. So long as the engine was properly oiled, it would run automatically, and had been known to run for as long as two days at a time without attention.

Shook was on duty twenty-four hours per day, and was required to live on the premises. His duties were to keep the pumping operations going and to report to the superintendent when the rods needed to be drawn and the well cleaned, or when some other condition arose needing attention which he was not able personally to give. He kept a pack of hounds, and erected a doghouse for them. His duties did not require that he stay at the well or shack constantly; he was free to go and come.

Shook’s supervisor knew that he kept hound dogs at his shack, and that he hunted with them in the vicinity of the lease. The supervisor did not object to this activity. Shook owned an electric lantern, known as a “Dad’s Lantern,” which he used about his shack and when hunting at night.

Three boys, Clyde Thompson, Thomas Davis, and Woodrow Davis, who lived in that portion of the county where the Stinnett lease is situated, gathered on the evening of September 7, 1928, for the express purpose of going hunting. They went about one and a half miles to a railroad; thence up the track about three-quarters of a mile to the employee’s shack. The shack was about 100 yards east of the railroad track. On the way over to the shack, Woodrow Davis discovered a pistol sticking out of Clyde Thompson’s shirt, and asked him what he was going to do with it. Thomas Davis testified that “Clyde said that this would be the last time that Lucien Shook would ever see the sun go down. After that he said he was going to rob him.” Woodrow Davis testified on this point as follows: “I asked him what he was going to do with the gun and he said he was going to murder Shook, and I asked him what he was going to do that for and he said ‘to see him kick.’ ”

When the boys reached the shack, they found Lucien in bed. They also found that his brother, Leon, was at the shack visiting him. On arriving at the shack, Clyde Thompson called out to Shook and asked him if he had a gun. On being answered in the affirmative, Thompson told him that he had some wolves bayed over on the hill about a half mile distant, and wanted Shook to go with him to help get them out. Shook consented, and he and his brother arose and dressed, got the “Dad’s Lantern” and hounds, and the five started in the direction of the place where Thompson said the wolves were baying.

There were, in fact, no wolves there, and nothing was said by Thompson to the Davis boys on the way to the shack about there being any wolves. This story about the wolves was concocted by Thompson for the purpose of luring Shook from his shack. The hunting party proceeded from the shack in single file. When about to the tank on the Davis land a quarter of a mile from the shack, Clyde Thompson killed both of the Shook boys. The motive was robbery and had his plans not been thwarted, Thompson, after robbing Lucien’s body of cash and a watch, Thompson planned to take the bodies of his victims to the shack and set it on fire.

Lucien Shook’s beneficiaries sought benefits under the Act. The carrier disputed the claim, arguing that Shook had deviated from the course and scope of his employment at the time of his death. The Court of Appeals concluded that Shook died in the course and scope of his employment.

The question is: Was he in the course of his employment while hunting near the premises or indulging in other forms of recreation and diversion? The case is the same as if he had been murdered while playing croquet. The employer knew that he hunted and played croquet as means of exercise and diversion. It is a matter of universal knowledge that a certain amount of recreation is not only desirable, but absolutely necessary to one’s well-being and to the proper discharge of his duties. The pump could be heard for more than a mile away, and the hunting trip was to be for only a half mile. We can see no valid or just reason for holding that there is any substantial difference, with relation to the question of whether the employee was in the course of his employment, between an injury received while engaging in necessary diversion known and permitted by the employer and one received while the employee is sleeping or tending to any other necessary duty common to mankind.

Southern Sur. Co. v. Shook, 44 S.W.2d 425, 427 (Tex. Civ. App.—Eastland 1931, writ ref’d).

Forty five years later, and more than 200 miles away, Esteban Valerio died while engaged in a different kind of deviation. Valerio, Alfonso Calvio, and Robert Oaks were employed by Newcomer Butane & Oil. The principal business was that of delivering butane and butane tanks to the farms and residences in Martin County, near Midland. One farmer had transferred his account and on the afternoon of May 16, 1973, the three employees were directed to pick up the butane tanks from that farm and return them to the company yard. There were some ten or more 500-gallon tanks at the farm, and Valerio and the two fellow employees were sent in two separate trucks to perform the task. Each truck had a trailer attached which carried a hoist. When they arrived at the farm, Valerio wrenched up and secured one tank to his trailer, then parked his truck and was helping his two fellow employees load a tank onto the other trailer. Oaks moved the truck he was driving to a point where the trailer would straddle the tank, and he and Calvio then hand-cranked the tank up onto the trailer.

In the process, a rabbit came out from under the tank and ran into an irrigation pipe which was stacked with other pipes some 40 or 50 yards from the truck. When the tank had been lifted, Valerio helped secure the tank and completed that particular task. While Oaks was parking his truck next to the other one, Valerio and Calvio went over to the pipe to get the rabbit. They lifted the irrigation pipe, which was some 30 or 40 feet long, and in the process the pipe came in contact with an overhead power line and Valerio was electrocuted. The three men at the scene were of equal employment status and there was no boss at the job, although Oaks testified that he had called to the two men while they were after the rabbit to stop what they were doing and to proceed with the work at hand.

The owner of the company, Mr. Newcomer, knew that his employees took coffee breaks when they desired and consented to the practice, although no specific times were assigned for the breaks. He testified that the employees had never been permitted nor instructed to move any irrigation pipe, nor had they any business hunting rabbits on company time, and it would not have helped the employer in any way for any employee to shake a rabbit out of an irrigation pipe.

Valerio’s beneficiaries sought recovery under the Act. The carrier disputed compensability, arguing that Valerio’s death occurred while and because he had deviated from the course and scope of his employment. The Court of Appeals agreed, rendering judgment for the carrier.

The court considered the case to be “somewhat similar” to the Shook decision. There, according to the court’s analysis, “the employee was held not to forfeit the claim for compensation where he embarked on what he thought would be a wolf hunt which would be held within hearing distance of the pump and where he could at all times determine if the engine was still performing.” The court recognized the rule to be that “when a man is employed to work at any job, the fact that he is a human with ordinary human habits and requirements is necessarily taken into consideration.” Conceding this, the court framed the issue in the following manner:

That being the case and considering the behavior of Valerio as being a natural impulsive act under the circumstances, the issue then to be determined is how far could he have gone in chasing his rabbit? At what point does the deviation become so distinct that he can be considered to have left his employment and the coverage?

Ranger Ins. Co. v. Valerio, 553 S.W.2d 682, 684–85 (Tex. Civ. App.—El Paso 1977, no writ). Resolving the issue in the carrier’s favor, the court wrote:

Here, the risk to which Valerio subjected himself when he raised the irrigation pipe to get the rabbit and touched the power line was foreign to anything that had to do with his employment in picking up butane tanks. The origin of the harm was clearly personal to him and could not be attributed to the employment, even though it occurred when he was on the job.

Id.

What factors, then, are considered when determining whether a deviation is major or minor for compensability purposes? Shook and Valerio suggest that the important factors include the nature of the risk, whether the injury occurred on property owned or controlled by the employer, and whether the origin of the harm was personal to the employee or attributable to the employer.