Court of Appeals of Texas, Dallas.
Alicia De Luna MAGANA and Ismael Luna, Appellants
v.
MILLS ELECTRICAL CONTRACTORS, INC., Appellee
No. 05-98-01004-CV.
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July 24, 2000.
Before Justices KINKEADE, MORRIS, and DODSON.1
MEMORANDUM OPINION
DODSON, J.
OPINION
*1 Alicia De Luna Magana and her husband, Ismael Luna, (collectively Luna) appeal a summary judgment granted in favor of Mills Electrical Contractors, Inc. (Mills) in this suit for personal injuries sustained in an automobile accident. Alicia De Luna Magana, a pedestrian, was hit by a vehicle driven by Robert Moore, a Mills employee, who was exiting the Mills parking lot. The trial court granted summary judgment in favor of Mills concluding that Moore was not in the course and scope of his employment at the time of the accident. In the first of four issues, Luna challenges this conclusion by the trial court. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1. We reverse and remand because Mills failed to conclusively establish Moore was not in the course and scope of his employment at the time of the accident.
In Texas, the well-settled rule is that in order to hold an employer liable for the negligent act of his employee, the act must be committed within the scope of the general authority of the employer, in furtherance of the employer’s business and for the accomplishment of the object for which the employee is employed. See Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex.1971); Broadus v. Long, 135 Tex. 353, 138 S.W.2d 1057 (1940). An employee is not ordinarily within the course and scope of his employment while driving his own vehicle to and from his place of work. See London v. Texas Power & Light Co., 620 S.W.2d 718, 719-20 (Tex.App.-Dallas 1981, no writ). One exception to this general rule applies when the employee is performing a service in furtherance of the employer’s business with the express or implied approval of the employer. See generally American Gen. Ins. Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957) (workers’ compensation case).
The evidence shows Moore was a supervisor for Mills. One of his duties was to turn in weekly job reports by the following Monday of each work week. Although he had various options, he customarily choose to turn in the required reports at the Mills main office in Dallas on the Monday morning following each week’s previous activity. The accident in question occurred at approximately 6:40 a.m. after Moore turned in these reports at the main office. He was exiting the office premises and proceeding to his job site when the accident occurred.
Donald Kauffman, Mills’ Personnel and Safety Manager and EEOC officer, stated by affidavit that on the day of the accident, Moore’s work hours were from 7:00 a.m. until 3:30 p.m. He also stated Mills does not reimburse its supervisors for mileage incurred in traveling to and from work but does reimburse an employee for mileage traveled during the work day. Kauffman further stated that on the day of the accident, Moore was reimbursed for his mileage from the office to the job site, the portion of travel when the accident occurred. We also note Moore’s daily job report on the day of the accident stated “Accident, Leaving Shop w/ Pedestrian.” We conclude this evidence is sufficient to raise a fact question as to whether Moore was in the course and scope of employment at the time of the accident. Consequently, the trial court erred in granting summary judgment. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). We sustain Luna’s first issue.
*2 Our disposition of Luna’s first issue renders unnecessary further determination of her remaining issues. Accordingly, the trial court’s judgment is reversed and the case is remanded to the trial court for further proceedings.
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The Honorable Carlton B. Dodson, Justice, Court of Appeals, Seventh District of Texas at Amarillo, Retired, sitting by assignment. |
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