242 S.W. 774 (Tex.Civ.App. 1922), 2572. ), Western Indem. Co. v. Shannon

Docket Nº:2572. [*]
Citation:242 S.W. 774
Opinion Judge:WILSON, C.J. (after stating the facts as above).
Party Name:WESTERN INDEMNITY CO. v. SHANNON et al.
Attorney:E. C. Gaines, of Austin, and Wood, Jones, & Wood, of Sherman, for appellant. McReynolds & Hay and Head, Dillard, Smith, Maxey & Head, all of Sherman, for appellees.
Case Date:May 24, 1922
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 774

242 S.W. 774 (Tex.Civ.App. 1922)

WESTERN INDEMNITY CO.

v.

SHANNON et al.

No. 2572. [*]

Court of Civil Appeals of Texas, Texarkana.

May 24, 1922

Rehearing Denied June 15, 1922.

Appeal from District Court, Grayson County; Silas Hare, Judge.

Proceeding by Lelia B. Shannon and another against the Western Indemnity Company before the Industrial Accident Board for an award. After an award of compensation, defendant sued in the district court to set aside the award, and from a judgment for plaintiffs, defendant appeals. Reversed and rendered in part, and affirmed in part.

Page 775

E. C. Gaines, of Austin, and Wood, Jones, & Wood, of Sherman, for appellant.

McReynolds & Hay and Head, Dillard, Smith, Maxey & Head, all of Sherman, for appellees.

WILSON, C.J. (after stating the facts as above).

Unless the judgment is wrong because the testimony did not warrant the finding that Shannon was an "employé" of Simmons within the meaning of the Workmen's Compensation Act (chapter 5, tit. 77, Vernon's Statutes, 1918 Supp.) at the time of the accident resulting in his death, we think the assignments in appellant's brief show no reason why it should not be affirmed. Appellant's contention with reference to that question is that the testimony not only failed to show that Shannon was such an employé, but, on the contrary, established as a matter of law that Shannon was an independent contractor at that time.

In the act referred to an "employé" is defined as:

"Every person in the service of another under any contract of hire, expressed or implied, oral or written, except masters of or seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of trade, business, profession or occupation of his employer." Article 5246--82.

The testimony was sufficient to show that Shannon surfaced the floor under a contract made by him with Simmons in the usual course of the latter's business. Hence he was an "employé" within the meaning of the law if he was in Simmons' service while he was doing the work; that is, if the relation of master and servant existed between him and Simmons. That relation has been said to exist "whenever the employer retains the right to direct and control the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only...

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