Goodnight v. Zurich Ins. Co.

• Decision Date: 19 May 1967
• Docket Number: No. 16915,16915
• Parties: Jearl E. GOODNIGHT, Appellant, v. ZURICH INSURANCE COMPANY, Appellee. . Dallas
• Court: Texas Court of Appeals

Page 626

416 S.W.2d 626

Jearl E. GOODNIGHT, Appellant, v. ZURICH INSURANCE COMPANY, Appellee.

No. 16915.

Court of Civil Appeals of Texas Dallas.

May 19, 1967.

Rehearing Denied June 2, 1967.

Chester Ball of Harris & Ball, Arlington, for appellant.

Byron L. Falk & Robt. G. Vial of Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.

CLAUDE WILLIAMS, Justice.

The crucial question presented by this workmen's compensation case is whether Jearl E. Goodnight was an employee, within the meaning of the Workmen's Compensation Act, of E. C. Houston at the time he sustained his injuries made the basis for his claim for compensation against Zurich Insurance Company. The trial court sustained the motion for summary judgment presented by Zurich, and decreed that Goodnight take nothing against such company. Goodnight appeals and contends, in four points of error, that at the time he was injured he did occupy the status of employee of Houston inasmuch as one L. F . McDonald, acting as either agent or employee of Houston, had hired him to work for Houston.

The material facts are practically without dispute. Appellant Goodnight, at the time he sustained his injuries on April 13, 1964, was an experienced welder and a full time employee of Frank Garland who owned and operated a welding shop. Occasionally Goodnight undertook to do other welding jobs outside the shop and at times which did not interfere with his regular employment. He had previously done work for certain of Mr. Garland's customers outside the shop on odd jobs but on such occasions he was paid through his employer, Mr. Garland. L. F. McDonald was also an experienced welder and had worked for Garland in past years. Welding work was divided into two categories, 'in-shop' and 'job site' jobs. The former work was accomplished inside the shop and delivered to customers while the latter was performed on the job site itself. Goodnight had worked regularly for Garland doing 'in-shop' welding work and also, as stated, had done odd jobs at odd times doing 'job site' welding work for Garland's customers. McDonald did job site welding for customers of Garland's shop.

E. C. Houston was a master electrician and the controlling partner in E. C. Houston Electric Company. Garland had done welding work for Houston over a number of years.

The City of Dallas solicited bids from contractors in connection with opening and remodeling the lighting facilities at three city parks. Houston was interested in obtaining the general contract on this proposal by the city. Houston contacted Garland and obtained from him a quotation on costs for the welding portions of the work required by the city's plans and specifications. Houston was successful in obtaining the general contract from the city to do the work whereupon he orally subcontracted the 'in-shop' welding to Garland.

It became evident that Houston would also need welding done at the parks themselves, that is, 'job site' welding. He thereupon asked Garland to subcontract that work also. Garland declined the 'job site' work but recommended L. F. McDonald to do that work. McDonald called Houston and the two consulted the plans and specifications promulgated by the city. McDonald quoted a price for drilling holes and doing the welding at the three parks, on a piece work basis, of $3.00 per pole which represented welding a hole at the top and a hole at the bottom of each pole. McDonald and Houston then entered into an oral agreement on that basis and McDonald proceeded to do all the work at the first park. When it was subsequently discovered that some of the poles would require one hole at the top, which was the harder work, Houston agreed to pay, and McDonald agreed to accept, $4.00 per hole and their contract was therefore renegotiated upon that basis.

McDonald had also entered into an arrangement with Garland, before starting to work at the park jobs, whereby McDonald agreed to pay Garland a certain percentage of what he received from the contract with Houston and in return Garland furnished McDonald with the equipment to be used in the performance of the Houston-McDonald contract. The equipment included a portable welding machine, trailer, safety belt, ladder and a pickup truck.

McDonald's job was a one-man operation. He had no regular employees to aid or assist him in the work. After performing a part of the contract McDonald decided, for health reasons, that he was not physically able to do any more of the work which required climbing the poles. McDonald testified that he went to Houston and asked him if he knew of someone to help him and Houston replied that he did not know of anyone. In this regard McDonald said;

'A What I told Mr. Garland was that I wasn't going to be able to do it, and Houston asked me to, or, well, he didn't ask me to, I take that back, he said he didn't know of anyone that could do it. And I told him I would try to find someone to help him do it, even if I had to help him. And, so I came on down to the shop and was talking to Mr. Garland and Mr. Goodnight, and Mr. Goodnight said he would go out there and do it for me on his own hours.'

McDonald testified that he did not ask Houston to back out of the contract or break the contract nor did he 'renege' on the contract or ask that it be renegotiated. He testified that he approached Garland while Goodnight was present, and asked Garland for his help or for recommendation of a man to help him. Goodnight spoke up and offered to do the climbing work. Garland spoke up and said that Goodnight coulc not do it while he was working for him but that if Goodnight wanted to do it on weekends or after hours he had no objection. Goodnight and McDonald entered into the arrangement whereby Goodnight would do the work on the poles. With reference to payment McDonald testified:

'Q Well, what was your arrangement with Mr. Goodnight, what did you offer him?

'A Well, I just told him I would give him what, in other words, what I would get out of it. I wasn't getting nothing out of it.'

McDonald did not tell Houston that he was going to use Goodnight and Houston did not know until after the accident that Goodnight was working on the poles. McDonald said that he gave instructions to Goodnight as to what to do:

'Q Now, did you go over with Mr. Goodnight what Mr. Houston had told you how he wanted the work done?

'A No, not particular, I just told where I wanted the holes and where to put them, and he went up there and started burning them.

'Q Well, you had given him the same instructions that you had received?

'A Yes.'

At 4:00 P.M. on April 13, 1964, about an hour and a half before Goodnight was to get off work at the Garland shop, McDonald came to the shop and he and Goodnight obtained Garland's permission for Goodnight to leave early so that he could go to the park and do the work on the poles. Shortly after their arrival at the park, which was the first time Goodnight had done any work on the job, and while Goodnight was up on a pole fixing to drill a hole with a cutting torch, and while McDonald was on the ground to tie the welding machines and cutting torch to Goodnight's rope, Goodnight's safety belt broke and he fell to the ground sustaining serious injuries.

After Goodnight's injuries McDonald completed the job with the help of employees of Budd's Welding Shop, whom he had engaged on a piece work basis. McDonald stated that he made a profit on that work. Later, McDonald went to Goodnight and offered to pay him for the work but Goodnight refused to accept the money.

Goodnight was not listed on Houston's books as an employee nor did Houston withhold any Social Security or other deductions from money paid on the job. Neither did McDonald withhold Social Security or other benefits for Goodnight.

We have carefully reviewed the entire record in the light of the familiar rules announced by our Supreme Court in both Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952), and Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (1965), and having done so we are convinced, and so hold, that no issue of fact on the question of employment by Houston was presented and therefore the trial court was correct in granting appellee's motion for summary judgment. Appellant's points must be overruled and the judgment affirmed.

Appellant contends that the record...