Continental Ins. Co. v. Wolford

• Decision Date: 09 October 1974
• Docket Number: No. 1040,1040
• Citation: 515 S.W.2d 364
• Court: Texas Court of Appeals
• Parties: CONTINENTAL INSURANCE COMPANY, Appellant, v. Pat WOLFORD, Appellee. (14th Dist.)

Page 364

515 S.W.2d 364

CONTINENTAL INSURANCE COMPANY, Appellant, v. Pat WOLFORD, Appellee.

No. 1040.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

Oct. 9, 1974.

Rehearing Denied Oct. 30, 1974.

Knox D. Nunnally, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellant.

Robert C. Barnett, Kenneth L. Smith, Houston, for appellee.

TUNKS, Chief Justice.

The principal issue in this workmen's compensation case is whether the appellee, Pat Wolford, was an employee or an independent contractor of Tiffany Homes, Inc. at the time he sustained his alleged disability.

Appellee Wolford was a brickmason who entered into an oral contract with Tiffany Homes, Inc. to lay the bricks at one townhouse site. It was understood between the parties that Wolford would furnish his own helper, as well as his own scaffolding and wheelbarrow, and that Tiffany Homes would supply the bricks, wall ties, and water. The cost of the mortar and sand were deducted from Wolford's wages, which were measured at the rate of 7cents a brick. Tiffany Homes did not withhold any of Wolford's wages for social security or income tax purposes. On August 19, 1971, after Wolford had worked on the job about a week, he allegedly injured his back in a fall off a scaffold. This suit was brought under the Texas workmen's compensation statutes against appellant Continental Insurance Company, Tiffany Homes' compensation carrier, seeking an award for 400 weeks total disability, medical expenses, and attorney's fees. The case was tried to a jury, which found that Wolford was an employee of Tiffany Homes on August 19, 1971, and that he was totally disabled for 400 weeks. Appellant's objections to the court's charge and its motions for an instructed verdict, for judgment n.o.v., and for a new trial were overruled by the trial judge.

The appellant insurance carrier contends in points of error 1 through 4 that the court below erred in submitting to the jury the question whether Wolford was an employee of Tiffany Homes, because there was no evidence that he was; and, moreover, that the evidence establishes as a matter of law that he was an independent contractor .

The question of the factual sufficiency of the evidence to support the jury's finding that Wolford was Tiffany's employee is not before the Court on this appeal. In deciding the much narrower question of whether there was any evidence to support the trial court's submission of this issue and the jury's finding thereon, this Court must consider 'only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary.' Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965); Western Casualty and Surety Company v. Gonzales, 506 S.W.2d 303 (Tex .Civ.App.-Corpus Christi 1974, writ granted); Gobert v. Texas Employers Insurance Association, 491 S.W.2d 495(Tex.Civ.App.-Eastland 1973, writ ref'd n.r.e.); Century Indemnity Co . v. Carnes, 138 S.W.2d 555, 559 (Tex.Civ.App.-Fort Worth 1940, writ dism'd jdgmt cor.).

The Texas Workmen's Compensation Act, Vernon's Tex.Rev.Civ.Stat.Ann. art. 8306 et seq. (1967), does not provide compensation for independent contractors. Williams v. Texas Employers' Ins. Ass'n, 218 S.W.2d 482 (Tex.Civ.App.-San Antonio 1948, writ ref'd n.r.e.). The claimant has the burden of proving that he is an employee and not an independent contractor. Shannon v . Western Indemnity Co., 257 S.W. 522, 524 (Tex.Com.App.1924, jdgmt adopted). In order to do this, the claimant must show that the one for whom he was performing services had the right to control the details and method by which he worked and not just the end results. Newspapers, Inc. v. Love, 380 S.W.2d 582, 585 (Tex.Sup.1964); Halliburton v. Texas Indemnity Ins. Co., 147 Tex. 133, 213 S.W.2d 677, 680 (1948). However, where there is no written contract and the terms of the employment are vague, evidence of the actual exercise of control (or its absence) over the details of the claimant's work by one for whom services were rendered is evidence of the existence of a right to control constituting an employer-employee relationship. Newspapers, Inc. v. Love, supra, 380 S.W.2d at 590.

There are a number of cases similar to the case at bar where the appellate courts have held that there was no evidence to support a judgment for the claimant. In Anchor Casualty Company v. Hartsfield, 390 S.W.2d 469 (Tex.Sup.1965), the court upheld the judgment n.o.v. for the insurance company. That case involved a carpenter who was paid by the job to work on three apartments and who set his own hours, furnished his own tools, and worked according to a predetermined plan. He was not listed on the payroll of the general contractor for whom he worked, nor were there any social security or income taxes withheld. The carpenter testified that the general contractor supervised him, but the latter denied this under oath; and there was no other evidence introduced tending to prove an employer-employee relationship. In Shannon v. Western Indemnity Co., Supra, the Commission of Appeals held that there was no evidence to support the trial court's finding that the claimant was an employee. In that case a general contractor subcontracted the surfacing of the flooring in a bank to Shannon, who brought his own equipment to the job site and was directed to work only on the floor in the board of directors' room. After he had finished this work, he received an electric shock from his surfacing machine. The Commission noted that there was no testimony by Shannon of any control exercised by the contractor over the details of his work, and listed five factors pointing toward an independent contractor status: (1) the claimant's work required a special skill, (2) he could use his own means to accomplish it and hire his own helper, (3) he was to furnish most of the materials and all of the labor, (4) he was to be paid by the job and not by the hour, and (5) he was engaged in an independent calling and could work for others besides the general contractor. Id. 257 S.W. at 524--525. In a case which is factually similar to the case at bar, Traders & General Insurance Co. v. Ferris, 312 S.W.2d 311 (Tex.Civ.App.-Amarillo 1958, writ ref'd), the court followed Shannon, Supra, and reversed and rendered the trial court's judgment for the claimant. There, the claimant Ferris entered into a contract with a building contractor to lay cement blocks in a building for 20cents a block. Ferris furnished two helpers and the contractor furnished the materials. All social security and income taxes were paid by Ferris. The only instructions given by the contractor concerned cutting the overhanging corners off the blocks. The court held that Ferris was an independent contractor as a matter of law. In Smith v. Fireman's Insurance Co., 398 S.W.2d 435 (Tex.Civ.App.-Houston 1966, no writ), an instructed verdict for the insurer was upheld. The court held that testimony by a subcontractor that the general contractor had the right to overrule his judgment or take him off the job was a mere '. . . scintilla of evidence of the requisite right of control, especially since no such right was ever exercised . . . over appellant.' Id. at 437.

On the other hand, there are a number of factually similar cases upholding a judgment for the claimant against a challenge that the evidence was legally insufficient. In Halliburton v. Texas Indemnity Ins. Co., supra, the claimant's deceased was hired by a lumber company to load ties onto railroad cars. The Texas Supreme Court upheld the jury's verdict for the claimant despite the facts that the deceased was paid by the piece, set his own hours, furnished his own equipment, and hired his own helper. There was testimony that the lumber company had supervised the loading procedure and had instructed the deceased in correcting mistakes. Id. 213 S.W. at 679--680. In Highway Casualty Company v. Reid, 311 S.W.2d 484 (Tex.Civ.App.-Fort Worth 1958, writ ref'd n.r.e.), the claimant Reid entered into an oral contract to hang sheetrock in a building. His wages were based on the quantity of sheetrock hung, and he furnished his own helper and tools. The general contractor also paid Reid by the hour for certain extra work that he did, but he did not withhold any social security or income taxes. There was uncontroverted testimony by Reid that the contractor had a right to tell him how to hang the sheetrock and how many nails to use. The appellate court affirmed the trial court's judgment for Reid, holding that there was evidence to support the jury's finding that he was an employee. Id. at 487. In Bowman v. Traders & General Ins. Co., 208 S.W.2d 420 (Tex.Civ.App .-Austin 1948, writ ref'd n.r.e.), the claimant was a plasterer employed by a subcontractor who sued the general contractor for compensation for an injury sustained while performing a task that the general contractor had directed him to do. There was evidence that the work was done according to the general contractor's instructions and that no plans or specifications were used. The general contractor had the right to fire the subcontractor and Bowman, his helper. The appellate court reversed the trial court's instructed verdict for the defendant and held that these facts raised a jury question whether Bowman was the general contractor's employee. In Southern Underwriters v. Samanie, 137 Tex. 531, 155 S.W.2d 359 (1941, opinion adopted), it was held that the question whether the claimant was an employee was for the jury. He hauled logs for a lumber company to a sawmill in his own truck, and was paid on the basis of the quantity of logs hauled. He bore all the expenses for the upkeep of the truck and set his own hours. There was testimony by the plaintiff and another driver that the lumber company foreman gave them detailed instructions regarding the manner in which the hauling operation was to be carried out. In a case factually similar to Samanie, Texas Employers' Ins....