Grandstaff v. Mercer

• Decision Date: 10 September 1948
• Docket Number: No. 14953.,14953.
• Parties: GRANDSTAFF et al. v. MERCER.
• Court: Texas Court of Appeals

214 S.W.2d 133

GRANDSTAFF et al. v. MERCER.

No. 14953.

Court of Civil Appeals of Texas. Fort Worth.

September 10, 1948.

Rehearing Denied October 22, 1948.

Appeal from District Court, Tarrant County; R. B. Young, Judge.

Suit by C. R. Grandstaff and others against T. E. Mercer, Teaming & Trucking Contractor, alleged to be a copartnership composed of Mrs. T. E. Mercer and George Mercer, for injuries, wherein the Hartford Accident & Indemnity Company intervened with plaintiff. From a judgment non obstante veredicto, plaintiff and intervenor appeal.

Reversed and remanded.

John B. Honts, of Fort Worth, Texas and Jones, Jones & Brian, and Franklin Jones, all of Marshall, Texas, for appellant, C. R. Grandstaff.

Cantey, Hanger, McKnight & Johnson, and Emory Cantey, all of Fort Worth, Texas, for appellant, Hartford Accident & Indemnity Co.

Rawlings, Sayers & Scurlock; Hill, Paddock & Langdon and Homa S. Hill, all of Fort Worth, Texas, for appellee.

SPEER, Justice.

Plaintiff C. R. Grandstaff filed this suit in a district court of Tarrant County, Texas, against defendants T. E. Mercer Teaming and Trucking Contractor, alleged to be a copartnership composed of Mrs. T. E. Mercer and George Mercer, to recover damages resulting from injuries sustained by plaintiff in the State of Louisiana.

For several years before and at the time he was injured, plaintiff had been and was a regular employee of Penrod Drilling Co., (to which we shall refer as Penrod). Hartford Accident and Indemnity Company carried Penrod's workmen's compensation insurance. Prior to the institution of this suit, the insurance carrier had paid to and for the benefit of plaintiff on account of his injuries slightly more than $2,900 for compensation, bills for doctors, nurses, hospitals, etc. The insurance carrier held a contract with plaintiff for contribution out of any judgment he should recover against defendants, equal to the amounts theretofore paid by it. With leave of court, the carrier Hartford Accident and Indemnity Co. intervened with plaintiff in this suit for such recovery. We shall refer to the parties as they were designated in the trial court.

At the conclusion of taking testimony, defendants moved for an instructed verdict, the reason assigned was in substance that at the time of the accident, the truck driver was not acting for defendants nor did he act within the scope of his employment, but that the undisputed evidence shows he was the temporary employee of Penrod. The motion was overruled and the case was submitted to the jury on special issues. The verdict was in all respects favorable to plaintiff, finding damages for him in a specified amount. Plaintiff moved for judgment on the verdict and pending that motion defendant moved for judgment notwithstanding the verdict. The motion for judgment on the verdict was denied and the one for judgment non obstante veredicto was sustained and judgment entered that plaintiff take nothing. The judgment recites that the court was of opinion he should have given an instructed verdict for defendants upon their former request. From the judgment non obstante veredicto plaintiff and intervener have appealed.

They rely upon three points of assigned error substantially as follows: Error of the court (1) in disregarding the verdict of the jury in all respects and entering judgment against appellants; (2) disregarding the verdict despite the evidence and jury finding that King (truck driver) and Grandstaff (plaintiff) were not fellow servants; and (3) disregarding the verdict and undisputed evidence on the issues of negligence and contributory negligence.

The injuries for which plaintiff sued were sustained in Louisiana and this suit was filed and prosecuted in Texas. The substantive laws of Louisiana must control plaintiff's rights of recovery but the procedural matters involved will be controlled by the laws of this state. Art. 4678, R.C.S. of 1925; Jones v. Louisiana Western Ry. Co., Tex.Com.App., 243 S.W. 976; 11 Amer.Jur. 495.

This appeal involves a proper construction of the principles applicable to independent contractors, borrowed and loaned servants, the workmen's compensation laws and the rights of employees of another, who is subject to the compensation laws, to sue a third party in tort, who negligently inflicts injuries upon them, all as prescribed by the laws of Louisiana. Likewise, there is also involved the Texas procedural matter of the trial court's sustaining a motion for judgment non obstante veredicto.

We think it helpful to make a brief reference to some parts of the pleadings of both plaintiff and defendants. The substance of the first paragraph of plaintiff's petition is: That on and before the day on which plaintiff received his injuries he was an employee of Penrod as a member of the drilling crew near Haynesville, La., and on that day defendants undertook to deliver to Penrod certain pipes and string the same along a roadway, to be connected by Penrod's employees. When the pipes arrived on a large truck, plaintiff's employer directed him and another employee to go with the truck and aid in unloading the pipes. The method used was that the driver drove the truck slowly along the route and plaintiff and the other man rolled the pipes off leaving them on the ground approximately end to end to be screwed together later and thus form a pipe-line. Allegations were made that defendants' truck driver was negligent in several named respects resulting in plaintiff's fall and consequent injuries.

Defendants pleaded the general denial and specially many acts of contributory negligence by plaintiff; they further specially pleaded that at the time of the accident defendants' truck and driver had been delivered to Penrod and that they were under the immediate control and direction of Penrod and not of the defendants; that defendants and the truck driver were all then and there the servants and employees of Penrod and fellow servants with plaintiff; that to seek recovery of defendants in tort contravenes the public policy of this state as provided by art. 8306, Sec. 3, R.C.S. There is an alternative plea to the effect that if defendants and their truck driver were not employees of Penrod and fellow servants with plaintiff then defendants were principals within the meaning of the Louisiana laws, having contracted with Penrod to haul the pipes and that plaintiff aided and assisted them in the furtherance of their business pursuant to an agreement between defendants and Penrod, and was entitled to compensation from defendants, that such right was exclusive and no action for tort would lie as attempted in this suit.

It will be observed that defendants' primary and affirmative defense as well as the greater part of the testimony offered were based upon the theory that they and their truck driver became the borrowed servants of Penrod and all were in Penrod's temporary employ after the arrival at destination of the shipment, which time embraced the period at which plaintiff received his injuries. Defendants then reason that since plaintiff was the regular employee of Penrod (who was subject to the workmen's compensation laws of Louisiana), he was a fellow servant with defendants and the truck driver, whose negligence (it is alleged by plaintiff) was the proximate cause of the accident; that even if plaintiff could have sued and recovered in tort against the truck driver or defendants as third persons under Louisiana laws, a recovery against the truck driver or the defendants (all being fellow servants with plaintiff) in a suit in Texas would contravene the established statutory policy of this state under art. 8306, Sec. 3, R.C.S. and therefore prohibited.

The rule of law in Louisiana as announced in Kimbro v. Holladay et al., La.App., 154 So. 369, is different from the settled rule in Texas. There an injured employee sued and recovered against a fellow servant of the same employer who was subject to the Workmen's Compensation Act of that state, Act La.No. 20 of 1914, as amended, upon the statutory provision providing for actions in tort by injured persons against a third party in addition to the injured person's right of compensation from his employer. Section 4397, La.Gen.St., Act La.No. 20 of 1914, § 7, as amended. In this state, where the instant suit was prosecuted, recovery may be had in tort by an employee of an employer who is subject to the workmen's compensation act against third persons inflicting the injury provided such third person be not a fellow servant of the injured one. Art. 8306, Sec. 3, R.C.S.

The primary defense to plaintiff's petition to the effect that defendants' truck driver became the temporary borrowed servant of Penrod during the time the pipes were being unloaded and plaintiff was injured depends upon a proper interpretation of the universally accepted rule of loaned and borrowed servants. The recognized rule applicable to loaned and borrowed servants is in substance, that the servant of one person may, by submitting himself to the control and direction of another for a particular task, become the temporary servant of the latter, and it makes no difference whether the one to whom the servant is lent exercises his right of control and direction as to the work to be done or trusts the judgment and experience of the borrowed servant to accomplish the task. 35 Amer.Jur. 802, sec. 378; 39 C.J. 558, § 669; 56 C.J.S., Master and Servant, § 330; 136 A.L.R. 516 et seq. and annotations thereunder at page 525. Interesting discussions of the subject may also be found in Spanja v. Thibodaux Boiler Works, La.App., 2 So.2d 668, certiorari refused; and Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628.

Under the yardstick above announced, we must look to the record to determine if plaintiff and defendants' truck driver were fellow servants of Penrod when the accident happened. To have been fellow servants they must have both been employees (regular...