Baker v. Highway Ins. Underwriters

• Decision Date: 06 November 1947
• Docket Number: No. 4542.,4542.
• Parties: BAKER v. HIGHWAY INS. UNDERWRITERS.
• Court: Texas Court of Appeals

209 S.W.2d 979

BAKER v. HIGHWAY INS. UNDERWRITERS.

No. 4542.

Court of Civil Appeals of Texas. El Paso.

November 6, 1947.

Rehearing Denied December 4, 1947.

Second Motion for Rehearing Denied January 15, 1948.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Gaines County; Louis B. Reed, Judge.

Suit under the Workmen's Compensation Act by Highway Insurance Underwriters to set aside an award of the Industrial Accident Board in favor of Nannie Mae Baker, individually and as guardian of the estates of Barbara Jean Baker and Carolyn Ann Baker, minors, for the death of W. R. (Roscoe) Baker, the husband of Nannie Mae Baker and the father of the minors, wherein defendants filed a cross-action. From a judgment of the district court setting aside the award, the defendants appeal.

Judgment affirmed.

Burks & McNeill and Smith, Cunningham & Boling, all of Lubbock (John Lee Smith, of Lubbock, of counsel), for appellants.

Alton Freeman, of Seminole, and Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellee.

McGILL, Justice.

This is an appeal from the judgment of the District Court of Gaines County setting aside an award of the Industrial Accident Board.

For a better understanding of the points involved a brief history of the litigation is deemed necessary.

On March 16, 1946, W. R. (Roscoe) Baker, the husband of appellant Nannie Mae Baker and father of the minors Barbara Jean Baker and Carolyn Ann Baker, as Guardian of whose estates appellant Nannie Mae Baker also appeals, was accidentally killed while operating a truck loaded with sawed lumber, between Lovington and Hobbs, in the state of New Mexico. On August 15, 1946, the Industrial Accident Board made an award under the Texas Employers' Liability Act against appellee and in favor of appellants as his beneficiaries. Mrs. Baker was awarded $10.00 per week for 360 weeks and the children $10.00 per week for 360 weeks. September 6, 1946, appellee as plaintiff filed this suit against appellants as defendants to set such award aside. September 23, 1946, defendants filed a plea to the jurisdiction in which they challenged the jurisdiction of the District Court of Gaines County. October 3, 1946, appellants as plaintiffs filed suit against appellee as defendant in the District Court of Lubbock County, in which they sought to mature the award. October 15, 1946, appellee, defendant in that suit, filed a plea in abatement in that court in which it alleged the prior filing of suit in the District Court of Gaines County. After a hearing on January 8, 1947, the District Court of Gaines County overruled defendants' plea to its jurisdiction. February 10, 1947, appellants, plaintiffs in the Lubbock County suit, filed a motion to strike the defendant's plea in abatement and a plea in estoppel on the ground that plaintiffs were residents of Lubbock County when the Gaines County suit was filed and defendant had denied under oath that there was a contract of hire between the deceased and Long Freight Line, the assured, and would not be heard to say that Baker was an employee of the Long Freight Line for the purpose of retaining jurisdiction in Gaines County and abating plaintiffs' suit. February 25, 1947, defendant filed a supplement to its plea in abatement theretofore filed in the Lubbock County District Court in which it alleged the order overruling defendants' plea to the jurisdiction by the Gaines County District Court on January 8, 1947, and that such order was res adjudicata on the question of jurisdiction of that court. March 3, 1947, the District Court of Lubbock County sustained the defendant's plea in abatement and dismissed the suit. June 10, 1947, appellants as defendants filed their first supplemental answer in which they as beneficiaries of the deceased Baker sought to recover from plaintiff the benefits provided by the Texas Workmen's Compensation Act. On June 23, 1947, the cause came on for trial on its merits before a jury. After two witnesses had testified defendants filed their first trial amendment. At the close of the evidence the court peremptorily instructed the jury to return a verdict in favor of plaintiff and against defendants and on such verdict entered judgment setting aside the award, and that defendants take nothing.

For convenience, when referring to the proceedings in the District Court of Gaines County and the District Court of Lubbock County the parties will be designated as they appeared in those courts.

Appellants present fifteen points on which they rely for a reversal. In the view we take of the case it will not be necessary to discuss all of them. If the court did not err in giving the peremptory instruction all of the other errors complained of become immaterial except insofar as they relate to this point. In view of our disposition of this point we shall discuss only the points which relate to it.

Defendants' cause of action on which recovery was sought was in effect that V. B. Byrd or the partnership of Byrd and Byrd on December 15, 1945 became the owner or owners of the business known as the Long Freight Line, theretofore owned by Tom Long and conducted by him under what is called in Article 5924 of the Revised Civil Statutes as an "assumed name"; that such business was so intermingled and operated with the individual business of V. B. Byrd that the two were inseparable, and that Roscoe Baker as an employee of Long Freight Line was engaged in such merged business and sustained the injuries resulting in his death in the course of his employment. That such was the theory on which recovery was predicated is evidenced by the defendants' pleading and proof. In their first amended cross-action defendants alleged that "Long Freight Line" was the employer; that on and prior to the time Baker received his injuries plaintiff was operating under the Workmen's Compensation Act of the State of Texas and had issued a policy of Workmen's Compensation insurance under the terms of which it agreed to pay to the "employees of said employer" and their beneficiaries the benefits provided by the Act; that on March 16, 1946, Baker was in the employ of "said employer" and was under a contract of hire in the regular course of his duties; that he was an employee of the Long Freight Line at the time he received his fatal injuries in the state of New Mexico. In their first supplemental answer they alleged:

"* * * defendants would show that V. B. Byrd and the Long Freight Line and the Byrd and Byrd Freight Line were for all intents and purposes one and the same employer; and in this connection defendants allege that V. B. Byrd purchased the Long Freight Line from Tom Long on December 15, 1945, and paid a valuable consideration therefor and went into immediate possession and began operating said trucking business as his own or as an enterprise owned by Byrd and Byrd; that such acts and conduct was in violation of the law and the rules and regulations of the Railroad Commission of Texas and that in an attempt to cover up and hide such operations from the Railroad Commission the plaintiff, Highway Insurance Underwriters, well knowing all of the facts or being in a position to ascertain the facts with the use of ordinary care, V. B. Byrd, Byrd and Byrd, and Tom Long entered into a conspiracy to cover up and evade the law and avoid the rules and regulations of the Railroad Commission of the State of Texas, and that W. R. Baker, deceased, was for all intents and purposes an employee of the Long Freight Line under the name of V. B. Byrd, and Byrd and Byrd were operating, and that Tom Long had no right, title or interest or any right of direction of the activities of the company from and after December 15, 1945, and by reason of the acts and conduct of the plaintiff and the said V. B. Byrd and the said Tom Long and the said Byrd and Byrd in holding themselves out as a common carrier legally authorized to do business in Texas and as a contract carrier legally authorized to do business in Texas with the full knowledge and consent of the plaintiff herein, the said plaintiff is now estopped to deny that the said W. R. Baker was an employee who was employed in the usual course of the trade, business, profession or occupation of the Long Freight Line, who was temporarily directed and instructed by his employer to perform services outside of the state of Texas."

Defendants' first trial amendment contained similar allegations as to the identity of the Long Freight Line and V. B. Byrd or Byrd and Byrd, at the relevant times.

Prior to December 15, 1945, Tom Long d/b/a (doing business as) Long Freight Line, was the owner of a Common Carrier Motor Carrier's Permanent Certificate of Convenience and Necessity No. 3560, issued to him by the Railroad Commission of Texas, authorizing service from Seminole, Texas to Lamesa, Texas, over State Highway No. 15, and return, and from Seminole to Seagraves over State Highway No. 1 and return. Application to sell and transfer this certificate to Byrd and Byrd Motor Freight Line was filed with the Railroad Commission on December 31, 1945, and the sale and transfer was approved by the Commission March 20, 1946. On January 18, 1946, the Commission issued to V. B. Byrd Specialized Motor Carrier Certificate No. 7065. The service authorized covered specific commodities (including "timber in its natural state") and was unrestricted from Seminole to all points in Texas as to some of them. As to others it was limited to points within a radius of fifty miles from Seminole to other points in Texas. Defendants introduced checks of V. B. Byrd showing that he had paid Long the entire agreed consideration for the Long Freight Line prior to the approval of the transfer of Long's common carrier permit by the Railroad Commission on March 20, 1946; they elicited from Byrd testimony that after December 15, 1945 Long took no part in the management of the business; that he, Byrd, received no compensation for his services as manager...