City of Wichita Falls v. Travelers Ins. Co.

• Decision Date: 02 February 1940
• Docket Number: No. 14019.,14019.
• Citation: 137 S.W.2d 170
• Parties: CITY OF WICHITA FALLS v. TRAVELERS INS. CO.
• Court: Texas Court of Appeals

137 S.W.2d 170

CITY OF WICHITA FALLS v. TRAVELERS INS. CO.

No. 14019.

Court of Civil Appeals of Texas. Fort Worth.

February 2, 1940.

Rehearing Denied March 8, 1940.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Action by the City of Wichita Falls against the Travelers Insurance Company on an automobile liability policy to recover the amount of a judgment against the city for injuries sustained by a third person while riding on one of the plaintiff's insured trucks while the policy was in force. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment affirmed.

T. A. Hicks and Thelbert Martin, both of Wichita Falls, for appellant.

H. M. Muse, of Wichita Falls, and Pinkney Grissom and Thompson, Knight, Baker, Harris & Wright, all of Dallas, for appellee.

SPEER, Justice.

Appellant, City of Wichita Falls, instituted this suit against appellee, the Travelers Insurance Company, for recovery under and by virtue of a policy of insurance issued on April 24, 1933, designated as an automobile insurance policy No. F. A. 7479985, alleged to have been effective when the losses complained of were sustained.

Appellant's petition charges that appellee issued its contract and policy of insurance, by the terms of which it "bound and obligated itself to pay on behalf of the assured, the plaintiff herein, all sums which the assured shall become obligated to pay, by reason of the liability imposed upon it by law for damages because of bodily injury, including death at any time resulting therefrom, accidentally sustained by any person, or persons, and caused by the ownership, maintenance or use of the automobiles described and set forth in said contract, agreement and automobile insurance policy; except such bodily injury to an employee of the assured while engaged in the business of the assured (other than domestic employment) or in the operation, maintenance or repair of the automobile, or to any person to whom the assured may be held liable under any Workmen's Compensation Law."

Further allegations are made to the effect that by the terms of the contract, appellee obligated itself to investigate, compromise or make settlement of any resulting claims against appellant that the company should deem expedient. That the appellee obligated itself to defend, in the appellant's behalf and name, any suit seeking damages on account of any injuries so received. That one C. H. Phillips sustained an injury by one of appellant's insured trucks while the policy was in force; that he sued the city and, agreeable with the terms of the policy contract, the appellee defended the suit on behalf of and in the name of the city; that Phillips recovered a judgment for $4,000; that appeals were perfected and prosecuted by appellee and the city finally paid the judgment, with interest and costs. Prayer was for recovery of the amount paid by the city in satisfaction of the judgment.

Appellee answered by general denial, and by special pleas, that no liability existed on its part, for the reasons, (a) C. H. Phillips was, at the time of his injuries, an employee of the city, and (b) by the provisions of the policy, no liability was assumed or covered for injuries sustained by employees of the city, while in the discharge of their duties. It further answered that it participated in the defense of the Phillips case in the district court of Wichita County, under the terms of a special written contract between the company and the city, by which it was provided that the rights of the parties should in no way be prejudiced or changed because of such participation, but that all rights were specifically reserved to each.

The pleadings and exhibits are lengthy, but we believe we have stated enough of each to enable us to pass upon the points before us. With the issues thus joined, the case was tried to the court, without a jury. Judgment was entered for appellee insurance company, and the City of Wichita Falls has appealed.

Whether or not C. H. Phillips, who recovered judgment against the appellant for injuries sustained in 1933, was at the time an employee of the appellant, is the controlling question for determination here. If he was not such employee and not in the discharge of his duties as such when injured, as contended by appellant, it should have recovered in this suit; on the contrary, if he was an employee, the provisions of the insurance policy did not bind the appellee and the judgment was correct.

The dispute grows out of the conditions under which Phillips was working for appellant on the day of his injury. The testimony fairly reflects the facts to be as follows: Mrs. A. T. Willis testified that at the time Phillips was injured, she was the local representative of the Family Relief Committee, a local charitable organization. It was her duty to investigate applicants for relief, and if found to be employable, report them to Reconstruction Finance Corporation, a Federal relief organization commonly known as RFC. That RFC at that time was accepting witness' recommendations and issuing to employables, such as Phillips, a card showing them to be entitled to so many hours' work at a stipulated price. RFC had many such applicants to whom these cards were issued. Compensation for such laborers was paid by RFC out of Federal funds, when the card was returned showing that the number of days work allowed had been performed for some municipality, such as Water Improvement Districts, cities or a county. Each of the named municipalities was cooperating with RFC during the time by using as many of the men holding cards as they could find work for. On the day Phillips was injured, the City advised RFC it could use five men. That number, including Phillips, was advised to assemble at the City barn. There they were picked up by one of the city's trucks and driven to the south side of the city to work that day. There was no legal obligation upon the part of the men to accept the work tendered, nor for the city to accept the men and furnish work for them; that it was all done through a spirit of cooperation with the Federal Government to furnish relief to those in need.

Mr. Dobson testified that he had been street supervisor for appellant thirty-five years; that as such he hired all the men who did street work; it was his custom, when through with a man, to give him a time check and he was paid by the city; that Phillips was not hired by him and that his name was never placed on a time sheet such as that kept for those employed by him to do regular work; but that Phillips did work for the city some in July, 1933; that witness had the responsibility of keeping the streets of the city; the labor was paid for out of city funds, included each year in a budget for that purpose; that with funds provided, he was enabled to take care of the streets in proper manner; that during July, 1933, Phillips was among a number of RFC men that witness found work for. He put these men to cutting weeds and grass on the streets and alleys, cleaning out culverts and whatever he could find for them to do. The work done was such as no provision was made for in the city's budget. The work done was not a total loss, but that it was such that he would not have had done by his regular crew. On the day Phillips was hurt, witness instructed the RFC office to have the five men report at the city barn, where he would have them picked up and taken to the place they were to work; that it was the custom with him to have men gather there for that purpose; when the day's work was done, he would send a city truck around to where they were working and haul them back to the barn. Witness directed the work to be done by the men, and appointed one as a foreman to see that his instructions were carried out. The men were placed at work on less used streets on the outlying parts of the city; that Phillips was doing that kind of work, under the direct supervision of the man witness had placed there, on the day of the injury. At about the time for the day's work to end, witness sent another regular employee of the city with one of its trucks out to haul the men back to the city barn. On the way to the barn, Phillips was injured. (He sued the city for damages, recovered and collected a judgment, out of which this suit grew, on the insurance policy.) Dobson further testified that so far as he knew, the city was under no obligation to give these RFC men work and it was only done to cooperate with the government; with this in view he was willing to find something for them to do; the work done by them was such as was very well to have done; he did not consider the effort wasted.

Under the facts enumerated, the appellant contends that Phillips was not in its employ at the time he was injured, but was an employee of RFC. In support of its contention, it cites and quotes at length from a number of decisions; among them are: Dempster Mill Mfg. Co. v. Lester, Tex.Civ. App., 131 S.W.2d 254; Dempster Mill Mfg. Co. v. Wiley, Tex.Civ.App., 131 S.W.2d 257; Pittman v. City of Wichita Falls, Tex.Civ.App., 120 S.W.2d 847; 96 A.L.R. 1155; Shelton v. City of Greenville, 169 Tenn. 366, 87 S.W.2d 1016; Taylor v. City of Los Angeles, 29 Cal.App.2d 181, 84 P.2d 242; Reid v. Department of Labor & Industries, 194 Wash. 108, 77 P.2d 589; Ford v. Independent School District of Shenandoah, 223 Iowa 795, 273 N.W. 870; Hoover v. Independent School District, 220 Iowa 1364, 264 N.W. 611; City of Waco v. Hurst, Tex.Civ.App., 131 S.W.2d 745.

We have carefully read the cited cases, but the holdings are all based upon a different situation to that involved here. In those cases, some one of the governmental agencies, established for the purpose of furnishing employment to those found in need, had undertaken projects of their own, in some municipality, which when completed would inure to the benefit of the territory or district in which it was situated. The distinction between those cases...