Western Indemnity Co. v. Shannon

• Decision Date: 24 May 1922
• Docket Number: (No. 2572.)
• Citation: 242 S.W. 774
• Parties: WESTERN INDEMNITY CO. v. SHANNON et al.
• Court: Texas Court of Appeals

Page 774

242 S.W. 774

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.

In 1920 T. J. Shannon was employed by the Lyon Planing Mill as a carpenter. The mill paid him $7 a day for his work. Shannon owned a machine for use in surfacing or polishing floors. He kept the machine at his residence, and did not let it for use by others, but when it was used operated it himself, charging $2.50 an hour for his services when using it. A particular kind of paper for polishing, kept in stock by the planing mill, was used in operating the machine. By the terms of Shannon's contract with the mill company, he had a right to suspend work he was doing for it when he had an opportunity to work elsewhere with the machine. The mill paid him nothing during the time he worked with the machine, and he paid one Pennington, the superintendent or manager of the mill, $1 an hour for the number of hours he worked with the machine for paper used in operating it and for release from his duties at the mill while he was operating it. Appellee J. A. Simmons, a general contractor, was engaged in repairing a building used by a bank in Sherman. The work included surfacing or polishing certain floors in the building. A month or six weeks before the floors were ready to be polished Simmons saw Shannon at Dr. Neatherly's, where he was using the machine, and told him "about the job at the bank." Shannon then told Simmons he would do the work, and requested him when he wanted it done "to call the Lyon Planing Mill and he would get him there." On Tuesday before the Thursday when Simmons expected the floors to be ready for polishing, he called Pennington at the planing mill and asked him if he could furnish him "a man to scrape the floors, and he said `Yes,' or something to that effect." Simmons had another conversation with Pennington "just before noon of Thursday," in which Pennington told him "he would have a man there." Shannon was the man who appeared to do the work at the time specified. He worked until about 4 o'clock of the afternoon of the following Saturday, and was on a ladder engaged in disconnecting wires which carried the electricity which furnished the power by which the machine was operated, when he fell from the ladder, and was dead when persons near by got to him. Whether his death was caused by the electricity or the fall, or both, did not appear from the testimony. Shannon worked 20 hours in surfacing the floor of one of the rooms in the building, and after his death Simmons paid his widow, appellee Mrs. Lelia B. Shannon, $50 for the work, $10 of which she paid to Pennington for paper used in operating the machine during the 20 hours. Pennington testified he waived the right he had under the contract with Shannon to $10 more than the sum paid him of the $50 Simmons paid Mrs. Shannon. At the time of the accident Simmons was a "subscriber" within the meaning of the Workmen's Compensation Act (chapter 5, tit. 77, Vernon's Stat. 1918 Supp.), and appellant had issued a policy by the terms of which it agreed to pay any sum due or to become due by him "because of any injuries or death and the obligation for compensation therefor imposed upon or accepted by" him under said act. The premiums on the policy were paid by Simmons at the end of each month, and the amount thereof was based on the aggregate of his payroll for labor during the month. Shannon was on the payroll for the month he worked, which was made up after his death, and the amount Simmons paid Mrs. Shannon was included in the aggregate thereof on which he paid appellant the premium for that month. The Lyon Planing Mill was also a "subscriber" under said act, and appellee the Associated Employers' Reciprocal had issued it a policy similar to the one issued by appellant to Simmons. It appears from the pleadings in the case that after his death Shannon's widow, appellee Mrs. Lelia B. Shannon, and their minor son filed with the Industrial Accident Board a claim for compensation under the act referred to against both appellant and the Associated Employers' Reciprocal; that the Board determined that Shannon was not employed by the Lyon Planing Mill at the time of the accident, but was in the employ of Simmons; that appellant was liable under the act as the insurer of Simmons; that Shannon's average weekly wages was $35; that Mrs. Shannon and her son were entitled to recover of appellant $15 per week for a period of 360 weeks; and that the Board made an award accordingly. This suit was by appellant to set side the award, on the ground that Shannon was not an employé of Simmons at the time of the accident. The trial was to the court without a jury, who found contrary to appellant's contention. The appeal is from a judgment awarding appellees Mrs. Shannon and her son a recovery of $4,719.72 against appellant.

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...