Dave Lehr, Inc. v. Brown

• Decision Date: 09 March 1933
• Docket Number: No. 1316.,1316.
• Citation: 58 S.W.2d 886
• Parties: DAVE LEHR, Inc., v. BROWN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

58 S.W.2d 886

DAVE LEHR, Inc., v. BROWN et al.^*

No. 1316.

Court of Civil Appeals of Texas. Waco.

March 9, 1933.

Rehearing Denied April 13, 1933.

Appeal from District Court, Bexar County; F. Stevens, Judge.

Action by Jimmie Brown, a minor, suing by next friend and others, against Dave Lehr, Inc. From an adverse judgment, defendant appeals.

Affirmed.

Cunningham, Moursund, Johnson, Rogers & Slatton, of San Antonio, for appellant.

Perry J. Lewis, H. C. Carter, Randolph L. Carter, and Champe G. Carter, all of San Antonio, for appellees.

GALLAGHER, Chief Justice.

This appeal is prosecuted from a judgment of the district court awarding appellees, Jimmie Brown, a minor, suing herein by next friend, and his parents, W. P. Brown and Margaret Brown, recoveries against appellant, Dave Lehr, Inc., of damages for injuries sustained by said Jimmie Brown as a result of his being struck by a motortruck while attempting to cross a public street in the city of San Antonio. The only assignments of error presented by appellant assail the sufficiency of the evidence to show legal liability on its part for the negligent operation of said truck, and the admissibility of certain testimony on such issue. The several findings of the jury on the issues of negligence on the part of the driver of the truck proximately causing the injuries sustained by the boy, the absence of contributory negligence on his part, and the amount of the damages awarded, not being in any way questioned, these phases of the case need not be either recited or discussed.

Appellees alleged that Jimmie Brown, the injured boy, while crossing a public street in said city, was negligently run down and struck by an automobile truck which was being operated by appellant through an employee. Appellant answered said charge by general denial. The case was tried to a jury. The testimony introduced showed that the truck which hit and injured the boy belonged to and was being driven by a Mexican named Mariano Valderramo and was loaded with sand belonging to appellant, which was being transported for delivery at a specified point. Appellant, at the close of the evidence, requested a peremptory charge instructing the jury to return a verdict in its favor, which was refused. The only issue bearing on appellant's legal liability for negligence on the part of the driver of the truck which struck the boy and the answer of the jury thereto were as follows: "At the time of the accident in question, was the truck driver, Mariano Valderramo, an employee of the defendant, Dave Lehr, Incorporated?" Answer: "Yes."

The court, in connection with said issue, gave the following instruction defining the word "employee" and explaining its application: "In this connection, you are instructed that an employee is a person in the service of another under any contract of hire, express or implied, oral or written, whereby the master retains or exercises the right of control in directing, not merely the end sought to be accomplished, but also the means and details of its accomplishment, not merely what shall be done but how it shall be done."

Appellant's only objection thereto was too general to require consideration by the court. Chase Bag Co. v. Longoria (Tex. Civ. App.) 45 S.W.(2d) 242, 244, pars. 4 to 6, inclusive, and authorities there cited; Baker Co. v. Turpin (Tex. Civ. App.) 53 S.W.(2d) 154, 156, pars. 4 and 5. Neither the accuracy nor the sufficiency of said definition is questioned in this appeal. Appellee did not request the submission of any issue with reference to the legal relation existing at the time of the accident between it and the driver of the truck. The court rendered judgment on the verdict, awarding the injured boy a recovery in the sum of $5,000, and his parents in the sum of $1,500 against appellant, in accordance with the findings of the jury assessing the amount of damages sustained by them, respectively. Appellant filed motion for new trial, and, upon the overruling of the same, perfected this appeal.

Opinion.

Appellant presents a group of assignments in which it contends that the testimony in this case established as a matter of law that Valderramo, the driver of the truck, at the time of the accident was an independent contractor, and not its employee. Appellant was a dealer in sand, gravel, cement, and other commodities. His place of business was contiguous or near to a railway delivery switch. He received the commodities aforesaid in cars, had the same loaded into trucks therefrom, and delivered by such trucks to purchasers at points agreed upon between them. The employment of the truckman Valderramo was according to the usual if not exclusive custom of conducting that branch of appellant's business. He owned his truck and maintained and operated it himself. Appellant was at the time of the accident engaged in delivering sand to a purchaser. It, through its agent or manager, employed said Valderramo to assist in making such deliveries. He used his own truck, loaded it, operated it to the place of delivery, and there unloaded it, all by himself. He was furnished by appellant a ticket with each load, which he was required to have signed on delivery and to return to it. For such services he was paid a stipulated price per load, based on the distance the same was hauled. The agreement between appellant and Valderramo under which he was working at the time did not specify that he should render continuous service, nor that he should continue to render such service for any particular length of time. He did, however, except for a few hours immediately succeeding the accident, work under his agreement with appellant exclusively and continuously for about three weeks. He was told by Mitchell, appellant's representative, to be at its place of business at 7 o'clock in the morning, and was usually told, about 5 or 6 o'clock in the afternoon, that appellant would not have any more hauling that day, and that he might go. Mitchell gave him a ticket, told him what to haul, the particular car from which the load was to be taken, and where to deliver the same. Mitchell also gave him instructions with reference to the amount to be hauled in each particular load, and saw that such instructions were followed. Mitchell also instructed him, in event of an accident, to report the same to appellant's office. Mitchell also instructed him to drive slowly and carefully, and claimed the right to discontinue his services in event he violated such instructions. Valderramo testified in general terms that Mitchell told him how to do his work, and that he obeyed such orders. There was testimony that truck drivers were expected and required to comply with the customs of the business. They were sometimes called upon for service at night. They were required to haul such material as was designated by Mitchell. They were instructed to travel the nearest route and to make prompt delivery, to obey all traffic laws, to drive slowly in passing schools and churches, to observe slow and stop signs, and to give proper signals when turning corners. Such instructions were given frequently, and they were required to obey the same. When they disobeyed they were warned or "fired," as appellant might elect. Truck drivers were instructed not to overload or underload their trucks. If they spilled material in loading or on the street their services were considered unsatisfactory and appellant could discharge them. Sometimes they were required to collect the price of a load upon delivery and to return such collection to appellant. They were paid on the agreed basis for loads actually hauled, each Saturday. The amount due each driver was entered on a list or instrument called a pay roll, and they were required to sign the same at the time of payment. The termination of the relation between them and appellant was termed a discharge. Appellant claimed the right under the terms of their employment to direct and control them as aforesaid, and did do so. The foregoing is a mere summary of the testimony bearing on the issue of appellant's right to control drivers in the discharge of their duties and the extent to which it exercised such control.

The rule for distinguishing between the relation of employer and employee, and employer and independent contractor, has been variously expressed by our courts. The ultimate test prescribed in such rule, however expressed, is the extent of the control which the employer has the right to exercise over the conduct of the party, and the mode and manner of doing the work he has engaged to perform. The extent of control actually exercised in a given case by an employer is properly considered in determining his right to do so. King v. Galloway (Tex. Com. App.) 284 S. W. 942, 943 et seq., and authorities there cited; Texas Employers' Ins. Ass'n v. Owen (Tex. Com. App.) 298 S. W. 542, 543, par. 1; McElrath v. Dixon (Tex. Civ. App.) 49 S.W.(2d) 995, 998, pars. 13 and 14. See In re Murray, 130 Me. 181, 154 A. 352, 75 A. L. R., page 720 et seq. and note page 725 et seq. Whether the relation in a given case is that of employer and employee, or employer and independent contractor, is usually, and especially upon conflicting or indefinite and inconclusive evidence, a question of fact to be determined by the court or jury trying the case. Texas Employers' Ins. Ass'n v. Owen (Tex. Com. App.) 298 S. W. 542, 543, pars. 2 and 3; El Paso Laundry Co. v. Gonzales (Tex. Civ. App.) 36 S.W.(2d) 793, 795, par. 5; Dr. Pepper Bottling Co. v. Rainboldt (Tex. Civ. App.) 40 S.W.(2d) 827, 829, par. 1; J. W. Zempter Const. Co. v. Rodgers (Tex. Civ. App.) 45 S.W.(2d) 763, 766, par. 1; McElrath v. Dixon (Tex. Civ. App.) 49 S.W. (2d) 995, 998, pars. 13 to 15, inclusive; Maryland Casualty Co. v. Donnelly (Tex. Civ. App.) 50 S.W.(2d) 388, 390, pars. 2 and 3. The testimony in this case does not show with such certainty that reasonable minds cannot differ as to the effect thereof, that Valderramo was at the...