Burton-Lingo Co. v. Armstrong

• Decision Date: 11 April 1938
• Docket Number: No. 4879.,4879.
• Citation: 116 S.W.2d 791
• Parties: BURTON-LINGO CO. v. ARMSTRONG.
• Court: Texas Court of Appeals

116 S.W.2d 791

BURTON-LINGO CO. v. ARMSTRONG.

No. 4879.

Court of Civil Appeals of Texas. Amarillo.

April 11, 1938.

Rehearing Denied May 9, 1938.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by Mrs. P. C. Armstrong, for herself and as next friend of Carl and Lillie Fay, minors, against the Burton-Lingo Company for damages for the death of P. C. Armstrong, deceased. From a judgment for the plaintiff, the defendant appeals.

Reversed and rendered.

Thompson & Barwise and B. V. Thompson, all of Fort Worth, for appellant.

Boykin & Shirley and Brown & Brown, all of Fort Worth, for appellee.

JACKSON, Chief Justice.

The appellee, Mrs. Armstrong, surviving wife of P. C. Armstrong, deceased, for herself and as next friend of Carl and Lillie Fay, the two minor children of herself and the deceased, and acting as next friend for others, who, under the record, it is unnecessary to name, instituted this suit in the district court of Tarrant county to recover against the appellant, Burton-Lingo Company, a Texas corporation, damages in the sum of $50,000 on account of the injury and death of her husband, alleged to have been caused by the negligence of appellant, its agents, servants and employees.

The sufficiency of the petition to plead a cause of action or of the answer to allege a defense thereto is not challenged, and we think it only necessary to say that appellee predicates her claim for damages on the allegations that the appellant had authorized P. W. Cassity, its agent, to act for it in unloading building material from railroad cars onto trucks and delivering it to the local yard at Odessa under the direction of its local manager; that P. W. Cassity was empowered to hire and discharge employees to assist him in doing this work and employed P. C. Armstrong and others to help him unload certain heavy timbers from a freight car onto a truck and trailer and haul them to and unload them at the local yard. The timbers were loaded onto the truck and trailer, carried to the yard, and, while unloading them, the deceased received injuries from which he died in a few days; that such injuries were caused by certain particular acts of negligence of the appellant which we will not state here as they are disclosed by the findings of the jury later set out.

The appellant denies that Cassity was its servant or agent for any purpose; that he had any authority to hire or discharge any of its employees; alleges that he was engaged in business for himself as a hauling contractor for whom the deceased was working, and as to appellant was an independent contractor with whom it had arranged to unload from the cars the material shipped to it, place it on trucks, carry it to and unload it into the local yard at Odessa for certain agreed prices.

In response to the special issues material to this appeal, the jury found, in effect, that the relation of independent contractor did not exist between appellant and appellee at the time deceased was injured, but that the relation of employer and employee did exist at such time; that the company failed to have the bolsters on the truck and trailer reasonably safe; that Cassity moved the end of the timber they were unloading just prior to the injury without giving the deceased time to get hold of the other end thereof; that appellant furnished the cant hook used by Armstrong at the time of his injury; that it was not reasonably safe for the purpose of unloading the timbers; and that each of such acts was negligence and the proximate cause of the injury of the deceased.

The jury found damages aggregating the sum of $12,500, which by the decree was proportioned to appellee and her two minor children, and of this judgment complaint is made.

The appellant presents as error the action of the court in refusing to direct a verdict in its behalf because it says the testimony shows, without dispute, that P. W. Cassity was not at any time its servant or agent, but was an independent contractor, by virtue of the provisions of the oral agreement in effect between appellant and Cassity long prior to and at the time of the injury resulting in the death of appellee's husband.

The appellant did not carry compensation insurance.

The facts disclose that appellant, the Burton-Lingo Company, is a Texas corporation engaged in buying and selling lumber and conducts twenty-five retail lumber yards in Texas, one of which is located at Odessa, and at each of these yards made contracts with others to haul and unload material, similar to the arrangements it had with Cassity.

The company had no trucks, equipment, appliances, or tools with which to unload and haul material from the railroad to the yard and no equipment with which to haul and deliver material sold to local customers. P. W. Cassity, who resided in Odessa, was in the trucking business, hauling for any one who desired his services. Mr. McMahon, the local manager, and Mr. Cassity, in 1930, entered into an oral contract by which Cassity agreed to unload from the railroad cars the material shipped to the company and deliver it to the yard and place it where he was directed. He was to receive, and did receive, $1 per thousand for lumber, $1 per ton for iron, wire and nails, $1 per yard for sand and gravel, 75 cents per ton for coal, so much for a square of shingles and for a pound of cement, etc. The agreement also provided for him to haul material from the yard to local customers when they ordered their purchase delivered and for this he kept a truck and a driver at the yard. The only material difference between the arrangement for such local deliveries and for unloading and hauling the material from the railroad cars was in the schedule of prices. Mr. Cassity agreed to and did furnish the trucks, tools, and equipment necessary to perform the work and to pay all the expenses of the trucks, gasoline, oil, and the repairs required. He hired and paid men to work for him for 40 cents per hour, and whether they worked one or more hours depended upon what he had to do, and when he saw fit to discharge them. This arrangement continued until 1933, during which time Cassity unloaded and delivered to the yard of appellant approximately 100 carloads of material. At that time Mr. Moon succeeded Mr. McMahon as local manager at Odessa, with whom, by agreement, the oral contract theretofore made with Mr. Cassity was continued in effect on the same terms and conditions previously made, except the price for hauling lumber from the railroad was increased to $1.25 per thousand. The contract did not require Cassity to work for such company exclusively nor was it obligated to give all of its hauling to him, however, he did practically all of its hauling at Odessa. The time the agreement was to continue was not fixed and could have been terminated by either party at any time. From 1930, when the arrangements were made, until 1933, when the contract was extended, Cassity had similar agreements for hauling with the Oil Field Lumber Company at Odessa, the Pickering Lumber Sales Company, and hauled by the trip for the Sunshine Iron Works, the Atlantic Oil Company, the Humble Oil Company, Fred Turner, and probably others. From 1933 to the date of the trial, in addition to hauling for appellant and some of the parties above named, he hauled for Fox Lumber Company, M. B. Thompson, Mr. Matthews, Sunshine Company, Devonian Oil Company, Western Windmill Company and others, some of whom were operating in competition with the Burton-Lingo Company, whose yard was about one-half mile from the railroad tracks. The details of the hauling were done under the direction of Cassity; the company did not instruct him how many truckloads to make out of a carload of material, the amount to be carried at a load, the length of time to be consumed in unloading material from the railroad car and transferring it to the yard, the hours his men should work, or the price he should pay them, the route or the speed at which the trucks should travel, but did inform him where material should be placed in the yard and where and to whom material for local customers should be delivered. After a car was placed on the track and he was informed thereof, if not unloaded in time to prevent demurrage, he was liable therefor. If hauling for some other customer, the company had no authority to and did not require him to stop before he finished for such other customer and do its hauling, but, when unloading a car of material for the company, it sometimes...