Dempster Mill Mfg. Co. v. Lester, 2196.

• Decision Date: 06 July 1939
• Docket Number: No. 2196.,2196.
• Citation: 131 S.W.2d 254
• Parties: DEMPSTER MILL MFG. CO. v. LESTER.
• Court: Texas Court of Appeals

131 S.W.2d 254

DEMPSTER MILL MFG. CO. v. LESTER.

No. 2196.

Court of Civil Appeals of Texas. Waco.

July 6, 1939.

Rehearing Denied July 20, 1939.

Error from District Court, Coryell County; R. B. Cross, Judge.

Action by Kathryn Lester against the Dempster Mill Manufacturing Company for the death of plaintiff's husband resulting from the collapse of a 60-foot tower and tank comprising a certain water system. To review a judgment for the plaintiff, defendant brings error.

Affirmed.

Touchstone, Wight, Gormley, Strasburger & Price, of Dallas, Tom R. Mears, of Gatesville, and Mueller & Green, of San Antonio, for plaintiff in error.

Richey, Sheehy & Teeling, of Waco, Tom L. Robinson, of Gatesville, and John F. Battaile, of Houston, for defendant in error.

ALEXANDER, Justice.

This suit was brought by Mrs. Kathryn Lester against Dempster Mill Manufacturing Company for damages for injuries resulting in the death of her husband, Herbert Lester. A trial before a jury resulted in judgment for plaintiff for the sum of $5,937.50. The defendant sued out this writ of error.

Dempster Mill Manufacturing Company contends that the said deceased, Herbert Lester, was its employee at the time he received the injuries which caused his death and that he received such injuries in the course of his employment, and, as a consequence, the plaintiff's right of recovery is limited by the terms of the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. The material question to be determined is whether or not the deceased was an employee of the Dempster Mill Manufacturing Company at the time he received his injuries. There is no material dispute in the evidence. In 1936, the Evant Independent School District sponsored a project to construct a water system, including the erection of a sixty foot tower and tank and the laying of the necessary pipe. Application was made to the Works Progress Administration for aid thereon. It was finally agreed that the school district would furnish the tower and tank and some of the necessary pipe and fittings and the Works Progress Administration would furnish all labor and the balance of the pipe necessary to complete the project. The school district sub-let to Dempster Mill Manufacturing Company the contract to furnish the tower and tank. In the agreement between Dempster Mill Manufacturing Company and the school district, it was understood that the laborers furnished by the Works Progress Administration were to do all the work that they were capable of doing and were willing to do in the completion of the project, including the erection of the tower and tank, but that on account of lack of experience on the part of these laborers there might be some work in connection with the erection of the tower and tank which they could not or would not do and in that event the Dempster Mill Manufacturing Company was to furnish at its own cost the labor necessary to complete the same. Dempster Mill Manufacturing Company was also to furnish a man familiar with such work to supervise the erection and construction of the tower and tank. Herbert Lester was on the government relief rolls and was what was commonly known as a WPA laborer. The Works Progress Administration selected him and others similarly situated to perform its part of the labor necessary to complete the project. These WPA laborers were employed and paid by the Works Progress Administration and were entirely under the control of its supervisor on the job as to when and where they worked, the hours they should work and as to the character of the work they should perform. Before these men went on the job, the Works Progress Administration's supervisor in charge of the project instructed them that some of the work to be done in connection with the tower was dangerous and that if they did not want to do the work, or if after beginning the work they felt unsafe, they could come down off of the tower and refuse to work thereon, and that this would not endanger their right to employment with the Works Progress Administration. In fact, according to the testimony, the entire project and the WPA laborers working thereon were under the supervision and control of the supervisor furnished by the Works Progress Administration except that Dempster Mill Manufacturing Company furnished a supervisor who instructed the WPA laborers how to do the work in connection with the erection of the tank and tower. The plans called for the painting of the tower after it had been erected. While the deceased, Herbert Lester, and a companion, Grover Wiley, were on the tower putting the last coat of paint on it, the tower collapsed and fell to the ground, killing Lester and seriously injuring Wiley.

In 39 C.J. 1269, the test for determining whether or not the relation of master and servant exists is laid down as follows:

"When Relation Exists—Usual Tests for Determining—aa. In General. The relation of master and servant exists where the employer selects the workman, and may remove or discharge him for misconduct, and may order not only what work shall be done, but the mode and manner of performance.

"Right to Select, Control, and Discharge Servant. To constitute the relation of master and servant for the purpose of fixing liability on the former for acts of the...