Court of Appeals of Texas, Beaumont.

John Michael HARRIS and Kathleen Harris, Appellants,

v.

MUNDY CONTRACT MAINTENANCE, INC., Incorrectly Sued as Mundy Industrial Contractors, Inc., Appellee.

No. 09-96-045 CV.

|

March 20, 1997.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

WALKER.

*1 In this summary judgment appeal, John Michael Harris and wife Kathleen Harris, plaintiffs below, filed their Original Petition against Southern Pacific Transportation Co., Frank Alpha, Mundy Industrial Contractors, Inc., and Hoechst Celanese Chemical Group, Inc., defendants below. Mundy Contract Maintenance, Inc., incorrectly sued as Mundy Industrial Contractors, Inc., is the only appellee to the present appeal due to severance by the trial court so that judgment in Mundy’s favor could be rendered final for purposes of appeal.

Appellants bring one point of error contending that the trial court erred in ruling that no genuine issue of material fact exists whether Frank Alpha was in the course and scope of his employment for Mundy at the time of the collision made the basis of suit.

Factually, on January 21, 1993, Frank Alpha, a co-defendant below, was leaving work at the Hoechst Celanese’s Bayport Marine Terminal in Seabrook, Texas. At approximately 5:30 p.m. on this date, Alpha was in his personal vehicle leaving work and exiting the Hoechst Celanese’s facilities. While departing these facilities, Alpha’s vehicle was involved in a collision with a train at a railroad crossing. Just prior to the collision, John Michael Harris, appellant, realizing collision to be imminent, jumped from the moving train, allegedly sustaining injuries. The thrust of the Harris’ lawsuit against Mundy centers on a vicarious liability theory, i.e., that Alpha, an employee of Mundy, was in the course and scope of his employment for Mundy at the time of the collision, even though Alpha had already clocked out and was leaving the premises for the day. Mundy denied that co-defendant Alpha was performing services for his employer within the course and scope of his employment at the time of the collision in question and also denied that the vehicle driven by Alpha was owned or leased by Mundy. Co-defendant Frank Alpha was an iron fabricator who installed structural steel for pipe-racks and other structures.

In reviewing this summary judgment appeal, we continue to apply those standards set forth in Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex.1985), requiring the movant to carry its burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; that in deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

The scope of review in an appeal from a summary judgment is limited. Issues that appellants did not expressly present to the trial court by either written motion, answer, or the response to the summary judgment cannot be considered by the appellate court as grounds for reversal. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). We are limited to considering the record as it existed at the time summary judgment was entered in reviewing an appeal therefrom. See Johnnie C. Ivy Plumbing Co. v. Keyser, 601 S.W.2d 158 (Tex.App.-Waco 1980, no writ). Where motion for summary judgment alleges more than one ground supporting judgment and the order granting judgment does not delineate the reasons for which it was granted, appellant must show that each independent ground alleged in the motion is insufficient to support summary judgment. Kyle v. West Gulf Maritime Ass’n, 792 S.W.2d 805 (Tex.App.-Houston [14th Dist.] 1990, no writ). Summary judgment may be affirmed if any of the grounds advanced in the motion are meritorious. Id.

*2 Appellants contend that a genuine issue of material fact exists whether co-defendant Frank Alpha was in the course and scope of his employment at the time of the collision for the following three reasons: 1) Alpha was in the course and scope of employment pursuant to the “access doctrine” because he was preparing to depart the employment premises by the only means of egress; 2) there is some evidence that Alpha was on duty and under pay at the time of the collision; 3) Alpha admitted he was in the course and scope of his employment at the time of the collision.

We address these contentions in the order presented.

Appellants cite cases wherein the “access doctrine” has been applied.¹

We agree that the “access doctrine” is an exception to the general rule that employees in route to and from work are not in the course and scope of their employment. Each case relied upon by appellants are workers compensation cases requiring liberal construction in favor of injured employees. Those cases supporting the “access doctrine” exception, reflect the courts’ concern for injured employees. We do not believe that the judicially created “access doctrine” was intended for liberal construction outside the employer/employee relationship. Appellants cite no authority which would encourage this Court to extend the “access doctrine” beyond its intended application. Furthermore, appellants’ authorities relate to ingress and egress of employer’s premises. The roadway upon which co-defendant Alpha traveled was not located on premises owned or operated by Mundy. These premises were owned by Hoechst Celanese’s Chemical Group.

Counsel for appellants candidly acknowledges that all cases relied upon by appellants supporting the application of the “access doctrine” are workers compensation cases. Appellants urge however, that although they are unaware of any authority applying the “access doctrine” outside the workers compensation context, that the policy reasons for the doctrine “should dictate universal application.” In support of their effort to expand application in this area, appellants rely primarily on the following language taken from Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 74 (1922):

Was Behnken engaged in or about the furtherance of the affairs or business of his employer when he received the injury causing his death? He was upon the crossing provided as the means of access to his work solely because he was an employee. He encountered the dangers incident to use of the crossing in order that he might perform the duties imposed by his contract of service. Without subjecting himself to such dangers he could not do what was required of him in the conduct of the lumber company’s business.

Urging the factual similarities of Behnken to our present case, appellants query: “Why should Alpha be in the course and scope of employment in a workers’ compensation case, but not in Harris’ action against Alpha’s employer?” The most apparent answer to this question lies within judicial leanings to liberally construe workers compensation cases in a manner favorable to injured employees. See Kelty v. Travelers Ins. Co., 391 S.W.2d 558, 561 (Tex.App.-Dallas 1965, writ ref’d n.r.e.). With conjecture, were the present case simply a workers compensation claim involving course and scope as between appellant Harris and Mundy, judicial honestly dictates that this Court may well take a differing view from that applied. Clearly stated, appellants prompt this Court to extrapolate liberal construction favoring injured employees to those not party to such relationship. This Court chooses not to pioneer this requested expansion of the law. The concept, though interesting, defies entertainment, for plaintiffs seek recompense through those legal privileges available solely to the defendant whom plaintiffs have sued. Thus, we hold that appellants’ attempted use of the “access doctrine” theory of recovery fails to raise an issue of material fact in appellants’ favor.

*3 Appellants also contend that employee Alpha was being paid at the time of the occurrence. Customarily work began at 7:00 a.m. but on the day of the accident, Alpha went on duty at 7:15 a.m. Alpha was employed to work full ten-hour shifts with thirty-minute lunch break. Appellants contend that since the accident occurred at 5:30 p.m. as Alpha was departing the job cite, there is evidence that Alpha was on duty and under pay until 5:45 p.m., thus raising a fact issue as to course and scope.

It is clear from the record that Alpha had “clocked out” from employment on the day of the accident. Alpha’s transportation was not furnished by his employer Mundy nor is there any evidence that Mundy directed the manner of transportation that Alpha would use to and from the job cite. There is no evidence that Mundy directed the particular route that employees would take in arriving and leaving the job cite. Further, at the time of the collision, Alpha was not performing any services for his employer.

In attempting to avail themselves of the employer/employee relationship, appellants must demonstrate that the employees’ acts were committed within the course and scope of employment and were in furtherance of the employer’s business and performed for the accomplishment of the object for which the employee was hired. See Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904 (Tex.App.-Corpus Christi 1988, no writ). The record is void of any evidence sufficient to raise a fact issue beneficial to appellants which would give rise to vicarious responsibility on the part of Mundy.

Finally, appellants contend that since Alpha admitted to being in the course and scope of his employment at the time of the collision, a fact issue exists. In this regard appellants attempt to rely upon Alpha’s answers to Request for Admissions made during discovery in this case. In short, appellants contend that since Alpha admitted to being in the course and scope of employment at the time of the accident, such admission is binding on appellee Mundy.

Apparently co-defendant Alpha did not timely file his Response to Plaintiffs’ Requested Admissions, therefore same are deemed admitted as a matter of law. Tex.R. Civ. Proc. 169. However, it is well settled that deemed admissions resulting from one defendant’s failure to respond to the requests may not be imputed to a co-defendant nor are they binding upon the latter due to their hearsay nature. USX Corp. v. Salinas, 818 S.W.2d 473, 479 (Tex.App.-San Antonio 1991, writ denied); Texas Supply Center, Inc. v. Daon Corp., 641 S.W.2d 335, 338 (Tex.App.-Dallas 1982, writ ref’d n.r.e.); Grierson v. Sreenan, 560 S.W.2d 423, 425 (Tex.Civ.App.-Beaumont 1977, no writ). Alpha’s admissions were not proper summary judgment evidence against appellee.

The record evidence before this Court reveals no genuine issue of material fact from which reasonable minds could determine vicarious responsibility on the part of Mundy. Therefore, we affirm the trial court’s judgment.

*4 AFFIRMED.

	Footnotes
1		Texas Compensation Ins. Co. v. Matthews, 519 S.W.2d 630 (Tex.1974); Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72 (1922); Dickson v. Silva, 880 S.W.2d 785 (Tex.App.-Houston [1st Dist.] 1993, writ denied); Bordwine v. Texas Employers’ Ins. Ass’n, 761 S.W.2d 117 (Tex.App.-Houston [14th Dist.] 1988, writ denied); Turner v. Texas Employers’ Ins. Ass’n, 715 S.W.2d 52 (Tex.App.-Dallas 1986, writ ref’d n.r.e.); Kelty v. Travelers Ins. Co., 391 S.W.2d 558 (Tex.Civ.App.-Dallas 1965, writ ref’d n.r.e.); Texas Employers’ Ins. Ass’n v. Anderson, 125 S.W.2d 674 (Tex.Civ.App.-Dallas 1939, writ ref’d); Texas Employers’ Ins. Ass’n v. Boecker, 53 S.W.2d 327 (Tex.Civ.App.-Dallas 1932, writ ref’d).