Eastep v. Travelers Ins. Co., 15198

• Decision Date: 22 December 1950
• Docket Number: No. 15198,15198
• Citation: 235 S.W.2d 732
• Parties: EASTEP et al. v. TRAVELERS INS. CO.
• Court: Texas Court of Appeals

Page 732

235 S.W.2d 732

EASTEP et al. v. TRAVELERS INS. CO.

No. 15198.

Court of Civil Appeals of Texas, Fort Worth.

Dec. 22, 1950.

Rehearing Denied Jan. 19, 1951.

Christopher & Bailey, of Fort Worth, for appellants.

Cantey, Hanger, Johnson, Scarborough & Gooch, Charles L. Stephens and Emory Cantey, all of Fort Worth, for appellee.

HALL, Justice.

There was one special issue submitted to the jury in this workmen's compensation case, to-wit:

'Do you find from a preponderance of the evidence that, on July 14, 1949, the Freedman Iron & Supply Company and the W. Silver Company were not engaged in a 'joint venture' in salvage operations at the Sinclair Refinery, under an agreement between them?', to which the jury answered: 'They were not engaged in a joint venture.'

The trial court rendered judgment non obstante veredicto for the insurance carrier, appellee herein.

Appellants' three points consist of an over-all complaint to the effect that said trial court erred in not rendering judgment for them based upon said jury finding.

We will review the testimony in its most favorable light to appellants. We will also consider same as true while determining its sufficiency.

The late Earnest Eastep met his untimely death on July 14, 1949, while doing his third day's work for Friedman Iron and Supply Company of Fort Worth; he left as survivors appellants herein, his wife and three minor children.

Appellee contends there was insufficient evidence in the record to support said jury finding in that said testimony disclosed that its policy of workmen's compensation was issued to one legal entity when the claimant was injured while in the employ of another and different legal entity. It undertook to prove that the deceased was killed while working for a partnership composed of Friedman Iron and Supply Company, with a branch office in Fort Worth, Tarrant County, Texas, where the accident occurred, and W. Silver Company, of El Paso, Texas, which was also engaged in the handling of scrap metal.

Undisputed facts show that the Friedman Iron and Supply Company and W. Silver Company purchased from a Sinclair refinery in Fort Worth, Tarrant County, salvage metal at a cost in excess of $20,000. This scrap metal was to be divided between the companies equally. It is as to the way and manner this division was made which these parties differ; appellee claiming that their actions created a partnership or joint venture, and appellant contending, and the jury found, they did not. The deceased was killed while operating equipment on the premises where said salvage metal was located.

Some of the facts proven, supporting the jury's answer to the above special issue, are from the following statement of W. Silver, introduced by appellee:

'* * * The amount of money required was a little more than I wanted to gamble, considering the market at the time, so I called Mr. Freidman of Freidman Iron and Supply Company, of Shreveport, Louisiana, to see if he wanted to participate in the salvage of this material. Mr. Freidman agreed to come into the deal, and he closed the deal with Griggs. My agreement with Freidman Iron and Supply Company was verbal, but it was understood that W. Silver Company and Freidman Iron and Supply Company would put up like amount of money, and each of us would take our proportionate part of the salvage metal from the refinery to where ever we desired; that the Freidman Iron and Supply Company could take their portion of material to whatever place they wanted to store it, and W. Silver Company could take their portion of the material to whatever location they desired. I sent a truck to Fort Worth so my material could be removed to Freidman Iron and Supply Company's yard where I would later send one of my truck and trailers to pick it up. Freidman at first had permission to hire men to work on my truck and to supervise them, because I did not send anyone to Fort Worth to represent me or to work for me. Sometime in May, 1949, Freidman Iron and Supply Company sent us a bill for labor for my truck, and we sent them a check payable to them. They wrote us about this check, and wanted to know if we wanted them to carry the men on their payroll, or if we wanted to carry the men on our payroll for this particular truck, and we told them to cash the check and we would carry the labor on our payroll; however, sometime after May '49, and I believe it was in June, 1949, I was in Fort Worth and Freidman Iron and Supply Company said they would carry all of the labor on their payroll to keep from getting mixed up. I do not think anything was said about insurance on these men, but I assumed that Freidman Iron and Supply Company would carry the insurance on these men. Freidman Iron and Supply Company made arrangements for a crane truck, and so far as I know, made arrangements for this truck to use in their part of the business. * * *

'Freidman Iron and Supply Company had full control of the labor so far as I was concerned, in that they paid the labor and hired and fired them, and otherwise generally supervised their work. There was no agreement between W. Silver Company and Freidman Iron and Supply Company whereby we would split the proceeds or split the losses. Each of us had so much money to purchase materials for our own companies, and each of our companies speculated on whether or not we could individually sell this material at a profit. If I had a better market for the material in El Paso and made more money off of my part then Freidman Iron and Supply Company could make on their market in Fort...