Texas Indemnity Ins. Co. v. Halliburton, 6329.

• Decision Date: 20 February 1948
• Docket Number: No. 6329.,6329.
• Citation: 209 S.W.2d 775
• Parties: TEXAS INDEMNITY INS. CO. v. HALLIBURTON et al.
• Court: Texas Court of Appeals

Page 775

209 S.W.2d 775

TEXAS INDEMNITY INS. CO. v. HALLIBURTON et al.

No. 6329.

Court of Civil Appeals of Texas. Texarkana.

February 20, 1948.

Rehearing Denied March 4, 1948.

Appeal from District Court, Upshur County; Otis T. Dunagan, Judge.

Suit under the Workmen's Compensation Act by Texas Indemnity Insurance Company to set aside an award of the Industrial Accident Board in favor of Mrs. Delia Halliburton and others. From a judgment denying relief, the plaintiff appeals.

Reversed and rendered.

Edwin M. Fulton, of Gilmer, W. C. Hancock, of Pittsburg, and Fountain, Cox & Gaines, Joyce Cox and J. M. Slator, all of Houston, for appellant.

Davis & McNeill, of Center, Florence & Florence, of Gilmer, and D. S. Meredith, Jr., of Longview, for appellee.

HALL, Justice.

This is a workman's compensation case. In the trial court appellant Texas Indemnity Insurance Company was plaintiff and cross-defendant and appellees, Mrs. Delia Halliburton et al. were defendants and cross-plaintiffs. Appellees with the exception of Billie G. Carter, who is a party pro forma, claimed compensation as statutory beneficiaries of (Bonnie) B. Halliburton, who was killed March 23, 1944, while loading railroad ties at a tie yard in Gilmer, Upshur County, Texas. All issues were settled by trial stipulations with the exception of the issue as to whether B. B. Halliburton was on the date of his injury and death an independent contractor, or an employee of the assured, Kirby Lumber Corporation, within the meaning of the Workmen's Compensation Act. Vernon's Ann.Civ.St. art. 8306 et seq. However, the stipulation was made subject to appellees' exception to the action of the trial court in permitting appellant to verify its answers to appellees' request for admissions of fact. The case was tried to a jury, and on the jury's findings that B. B. Halliburton was an employee of the assured on the date of his death and not an independent contractor, judgment was entered for appellees.

By points one and two appellant asserts that the trial court erred in (a) "refusing to hold that as a matter of law B. B. Halliburton was not an employee of the assured, Kirby Lumber Company, within the meaning of the Workmen's Compensation Act at the time of his injury and death"; and (b) "in refusing to hold that as a matter of law B. B. Halliburton was an independent contractor." These two points present the controlling issue here.

The evidence shows that B. B. Halliburton and his son E. B. Halliburton were partners in the business of farming and cattle-raising in Shelby County before and at the time of their employment by Kirby Lumber Company; that they owned two farm tractors and other farm machinery which, in addition to their farming, were used by them in constructing dams and terraces for various persons in the community where they lived. They received as pay for such work $3.00 per hour and they were engaged in this business when approached by Smith Sanders, a representative of Kirby Lumber Company, hereinafter referred to as the assured, who sought to and did employ them to load cross ties and switch ties at different tie yards operated by assured. The price offered by Sanders was $1.50 per thousand board-feet for ties loaded. This price was not accepted by Halliburtons. However, an agreement was made between them whereby they would load one or two cars of ties to determine whether the price offered, $1.50 per thousand feet, would equal $3 per hour, which Halliburton had been receiving for constructing dams and terraces. After the experimental loading had been completed, a price of $2.00 per thousand feet was agreed upon. The Halliburtons knew nothing about loading ties and so informed Sanders who told them they didn't need to know anything about the method of loading ties as "some of us will be there to show you how to do and what to do." Sanders did show them and they used his method during the entire time they worked for assured.

The cross-ties were assembled at various tie-yards along different railway systems in East Texas and were stacked adjacent to spur tracks extending into the yards from the main railway lines. The ties were to be loaded in open top railway cars known as gondolas which were spotted on the spur tracks near the stacks of ties. Sanders showed them how to affix a gin pole to the side of the gondola car; this pole extended upright several feet above the top of the car and at the top end was fastened a pulley block. A steel cable was run through the block and one end fastened to Halliburton's farm tractor and the other around the cross-ties. Two parallel skid-poles were laid on the ground between the tie stacks and the car, at right angles to each, and at the end nearest the car other parallel skid poles were placed upright to the top of the car, the upper ends of which were notched so as to fit into the upper edge of the car to prevent them from slipping. The ties were pulled by the truck by means of the cable and block along the skid-poles and placed in the car. In loading the ties certain rules were to be observed by the Halliburtons, namely, (1) no car was to be loaded above the level of the top; (2) ties of the same kind of wood were to be loaded together in the car; (3) rejected ties known as "O-outs" were not to be loaded; (4) each stack of ties in the car was to be placed on two cross timbers so as to prevent the ties from resting on the bottom of the car; and (5) no uninspected ties were to be loaded.

In the operation of loading the ties Halliburtons furnished their own equipment, such as trucks and cables; paid for all oil and gas used; maintained their equipment, and employed and paid their laborers. They were notified when cars were to be spotted at a tie yard and were expected to be on hand to load them so as to facilitate the moving of the ties and prevent demurrage charges against assured. On at least one occasion Halliburtons were not able to load ties when called by assured and asked a postponement of the loading date, which was granted. They could load as many ties at a drag as they saw fit, just so the work was expedited. Halliburtons set the hours they would work, that is, the time to begin and quit. For each loading out from a tie yard, Halliburtons were paid by assured. On some occasions the check was made payable and delivered to the father, E. B. Halliburton, and on others to the son, E. B. Halliburton. Sometimes B. B. Halliburton directed the loading of the ties and at...