Corrigan, Lee & Halpin v. Heubler

• Decision Date: 25 April 1914
• Docket Number: (No. 7043.)
• Citation: 167 S.W. 159
• Parties: CORRIGAN, LEE & HALPIN v. HEUBLER et al.
• Court: Texas Court of Appeals

167 S.W. 159

CORRIGAN, LEE & HALPIN v. HEUBLER et al.

(No. 7043.)

Court of Civil Appeals of Texas. Dallas.

April 25, 1914.

Rehearing Denied May 23, 1914.

Appeal from District Court, Dallas County; J. C. Roberts, Judge.

Action by J. H. Heubler against Corrigan, Lee & Halpin and others. From a judgment for plaintiff against the named defendants, they appeal. Reversed and remanded.

Burgess, Burgess & Chrestman, of Dallas, for appellants. Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellees.

TALBOT, J.

This suit was brought by the appellee Heubler against Bernard Corrigan, S. N. Lee, and J. F. Halpin, and the firm of Corrigan, Lee & Halpin, composed of said three persons, and against W. D. Gilkison, to recover damages for personal injuries alleged to have been received by plaintiff on the 2d day of October, 1911, while in the employ of all of said defendants, by falling from a temporary upright structure used in connection with certain work being done in the course of the construction of what is known as the Dallas and Oak Cliff Viaduct; the said Corrigan, Lee & Halpin being the general contractors for the building of said viaduct. The defendant Gilkison answered by general demurrer, general denial, and pleas of contributory negligence and assumed risk. The defendants Corrigan, Lee & Halpin answered by general demurrer, special exceptions, general denial, pleas of contributory negligence, and assumed risk. These defendants also pleaded that Gilkison was an independent contractor on that portion of the work on which plaintiff was engaged at the time he was hurt; that plaintiff was in the employ and under the direction of said independent contractor, and was not in the employ of Corrigan, Lee & Halpin, nor in any way subject to their supervision, direction, or control. Plaintiff by supplemental petition denied that Gilkison was an independent contractor, but was subject to the orders and control of defendants Corrigan, Lee & Halpin. The trial of the case resulted in a verdict and judgment in favor of the defendant Gilkison, and in favor of the plaintiff against Corrigan, Lee & Halpin, as a firm, and against S. N. Lee and J. F. Halpin individually, for the sum of $2,000; Bernard Corrigan, not being personally served with citation, did not answer. From the judgment rendered against them the appellants appealed.

The first assignment of error complains of the court's refusal to give a special charge, requested by appellants at the conclusion of all the evidence, directing the jury to return a verdict in their favor. The proposition advanced under this assignment is that the evidence adduced conclusively showed that the defendant Gilkison was an independent contractor, in charge of the work upon which plaintiff was injured; that plaintiff was employed by Gilkison and under his exclusive control at the time he was injured, and therefore the peremptory instruction should have been given. We have reached the conclusion that this assignment and proposition should not be sustained. It is well settled in this state that, when the evidence is sufficient to make an issue, the question must be submitted to the jury. This is true, it is held by the Supreme Court, even though it might be that the trial judge or Court of Civil Appeals would set aside a verdict found upon the evidence. Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399. In Cyc. p. 1547, the subject of independent contractors is discussed, and it is there said that the test of the relationship "is whether the employé represents his employer as to the result of the work only or as to the means as well as the result. If the employé is merely subject to the control or direction of the owner or his agent as to the result to be obtained, he is an independent contractor. If the employé is subject to the control of the employer as to the means, he is not an independent contractor." This is substantially the test laid down in Wallace v. Southern Cotton Oil Co., supra. In that case the question was whether the man Davis was a servant of the Cotton Oil Company, or an independent contractor "engaged in a pursuit free from the control of said company." Here the question is: Was Gilkison a servant of Corrigan, Lee & Halpin, or such a contractor? While the evidence may not, perhaps, be quite so strong to establish that the relationship existing between Gilkison and Corrigan, Lee & Halpin was that of master and servant as was the evidence in Wallace's Case to establish such relationship, yet, without expressing or intimating any opinion as to what weight should be given to it by a jury, we think it was sufficient to take the question to the jury.

There is no question but that Corrigan, Lee & Halpin were the general contractors engaged in the construction of the viaduct, and that whatever relation Gilkison bore to that firm existed by virtue of a parol or verbal contract, and not by one in writing. Gilkison was irresponsible financially, and Corrigan, Lee & Halpin furnished all the material used by him and paid the employés working under him, as they paid other employés working on the viaduct. The contract entered into between Dallas county and the firm of Corrigan, Lee & Halpin for the construction of the viaduct provides that the latter "will not assign, transfer or sublet the aforesaid work, or any part thereof, without the written consent of the commissioners' court," and there was no proof of such consent. Some time during the progress of the work, the time not being definitely, and by direct testimony, shown, the firm of Corrigan, Lee & Halpin put employés not claimed to have been employed by Gilkison upon the work he was doing, and informed him that he was indebted to them in the sum of $600 or $800. At this time Gilkison gave up the contract he claims to have made with Corrigan, Lee & Halpin, and he says: "I did not stay on the work after that." At the time of the trial Gilkison had not paid the $600 or $800 owed by him, nor had he given to Corrigan, Lee & Halpin his note or other written evidence of said indebtedness. In this connection he testified:

"What I mean to say was that they simply wiped out the contract, and I had a moral obligation of about $800 with...