Dennis v. Texas Employers' Ins. Ass'n

• Decision Date: 23 March 1938
• Docket Number: No. 5199.,5199.
• Citation: 116 S.W.2d 492
• Parties: DENNIS et al. v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Court of Appeals

Page 492

116 S.W.2d 492

DENNIS et al. v. TEXAS EMPLOYERS' INS. ASS'N.

No. 5199.

Court of Civil Appeals of Texas. Texarkana.

March 23, 1938.

Rehearing Denied April 14, 1938.

Appeal from District Court, Gregg County; Will C. Hurst, Judge.

Action under the Workmen's Compensation Act by the Texas Employers' Insurance Association, insurance carrier, against Mrs. Laura E. Dennis and others to set aside an award of the Industrial Accident Board in favor of Mrs. Laura E. Dennis and others, surviving wife and minor children of Tim R. Dennis, employee, who was killed while working for R. C. Sweeney, receiver for the Cap Rock Oil Company. There was a verdict for defendants, and, from a judgment for plaintiff non obstante veredicto, defendants appeal.

Affirmed.

C. J. Shaeffer, Geo. W. McHam, and Roy W. McDonald, all of Dallas, for appellants.

Ramey, Calhoun & Marsh and Joe W. Sheehy, all of Tyler, for appellee.

WILLIAMS, Justice.

In this action under the Texas Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., appellee, Texas Employers' Insurance Ass'n, plaintiff below, instituted this suit to set aside an award of the Industrial Accident Board in favor of appellants, Mrs. Laura E. Dennis, Nelson, Jerry Ruth, James Leroy, Thelma Jean, and Mary Ella Dennis, surviving wife and minor children of Tim R. Dennis, who was instantly killed while working for R. C. Sweeney, receiver for the Cap Rock Oil Company, the insurance being carried by plaintiff.

On the issues submitted, the jury found Dennis to be an employee of Sweeney; that he was not engaged in working for Sweeney as an independent contractor; that he was killed while working in the course of his employment. These findings, together with the agreed facts stipulated in the trial, are sufficient to support a judgment for compensation in favor of the widow and children, provided the deceased was an employee and not an independent contractor at the time. Motions were made by the respective parties to enter judgment, and the trial court granted that of plaintiff to enter judgment in its favor non obstante veredicto, reciting in the judgment so entered: "that from the evidence herein, the deceased, Tim R. Dennis, was, at the time he sustained fatal injury, working as an independent contractor as a matter of law."

R. C. Sweeney as such receiver was in the custody and control of this well at the time Dennis was killed. The well had sanded up with the tubing stuck in the ground. An attempt to pull the tubing by one Bob Price theretofore employed by Sweeney had failed prior to the time Sweeney and Dennis entered into negotiations for the latter to furnish his equipment and pull the tubing or liner. The deceased and one Leak, calling their business the Industrial Swabbing Company, owned what might be called a swabbing machine, consisting of a swab, Wilson winch, and cable, mounted on a truck. The deceased moved from place to place and furnished with this truck his own motor power. He had worked at this type of work on some eighty wells in the East Texas oil field. Wells which had standard equipment were equipped with cables, winches, and parts similar to those which Dennis had, and, when so equipped roustabouts of experience in the oil fields performed the services which Dennis undertook on this occasion. He had engaged in the same task that an experienced roustabout usually performed on a well which had standard equipment. This well did not have standard equipment.

Dennis refused the offer from Sweeney to take the job on a contract price of $150, stating that he never took a job by the contract, that it might require five hours, and it might take three weeks. They finally agreed that Dennis was to be paid $50 a day on an eight-hour day basis, Dennis to furnish his outfit and one helper, and Sweeney to furnish two helpers. Sweeney testified that he told Dennis he did not want to pay over $150, and that the maximum he could spend in effort to remove the tubing was $250; that nothing was said about the pay if it should take more than five days, or if Dennis did not get the tubing out; that Dennis would supervise the work and that was why he (Sweeney) was hiring him, for he knew nothing about such work. As to the contract, the witness Rux testified: "Sweeney said, `If we can't contract the work it will be satisfactory to work it by the day,' and Mr. Dennis said, `All right, we will be there next day,' and Sweeney said, `I am going to tell you the tubing is stuck and I don't know whether or not you will be able to pull it out.' And Dennis said `Well, I can try; I never have failed yet.'"

Another witness testified that Dennis agreed to work on the well and do what was necessary to make it produce, for the wages of $50 per day.

During the day and prior to the accident, which occurred about 3:30 p. m., various attempts were made to dislodge the tubing. The helper of Dennis and the two roustabouts furnished by Sweeney handled the details of preparing the cable for each pull and worked the tubing forwards and backwards after a pull. After each pull Sweeney and Dennis and the three helpers would return to the floor of the derrick to take measurement to determine whether any gain had been made. During the progress of the work Sweeney instructed the roustabouts to remove some ropes from the derrick floor; ordered two of the men to melt some babbit off some cables; and instructed Dennis' helper to put a new bridle end on a barrel which pertained to the well. As one witness described the work, "Sweeney was in charge of the work around the derrick, but Dennis was out on the truck telling us what to do. Mr. Sweeney wasn't giving orders to Dennis — they just talked like two men would talk about a job, about one thing and another about the work, and how it was going to be done." There is other testimony to the effect that Sweeney did not give any instructions to the helpers or to any one about the details of the work. The evidence is to the effect that Sweeney was not experienced in this line of work and did not know much about it.

One of the witnesses describes what was said and done just prior to the accident in this way: "We were pulling on the tubing and Dennis had been working on the truck and came up on the floor of the derrick and was talking about the tubing being tight. Sweeney said that Bob Price had pulled in the crown block...