Halliburton v. Texas Indemnity Ins. Co.

• Decision Date: 07 July 1948
• Docket Number: No. A-1683.,A-1683.
• Citation: 213 S.W.2d 677
• Parties: HALLIBURTON et al. v. TEXAS INDEMNITY INS. CO.
• Court: Texas Supreme Court

Page 677

213 S.W.2d 677

HALLIBURTON et al. v. TEXAS INDEMNITY INS. CO.

No. A-1683.

Supreme Court of Texas.

July 7, 1948.

Rehearing Denied October 20, 1948.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by Texas Indemnity Insurance Company to set aside an award of the Industrial Accident Board in favor of Mrs. Delia Halliburton and others. Judgment in favor of claimants was reversed by the Court of Civil Appeals, 209 S.W.2d 775, and judgment rendered in favor of the insurance company, and claimants bring error.

Judgment of Court of Civil Appeals reversed and cause remanded to district court for new trial.

Davis & McNeill and Dave McNeill, Jr., both of Center, Florence & Florence, of Gilmer, and D. S. Meredith, Jr., of Longview, for petitioners.

Edwin M. Fulton, of Gilmer, William C. Hancock, of Pittsburg, Fountain, Cox & Gaines, Joyce Cox and J. M. Slator, all of Houston, for respondent.

TAYLOR, Justice.

This is a workmen's compensation case filed by Texas Indemnity Insurance Company after an award by the Industrial Accident Board in favor of Mrs. Delia Halliburton and others, the widow and children of B. B. Halliburton. Mrs. Halliburton, for herself, and on behalf of her minor daughters, claimed compensation as statutory beneficiaries of B. B. Halliburton, who was killed March 23, 1944, while loading ties onto a railroad car in a tie-yard at Gilmer, Texas. All issues in the case were settled by trial stipulations with the exception of whether B. B. Halliburton and his son, E. B. Halliburton, were at the time of the father's injury and death, an independent contractor or an employee of Kirby Lumber Corporation within the meaning of the Workmen's Compensation Act. Vernon's Ann.Civ.St. art. 8306 et seq.

The case was tried before a jury, and, on the basis of the stipulated facts and the jury's findings that B. B. Halliburton when injured was an employee of the assured and not an independent contractor, judgment was rendered in favor of Mrs. Halliburton and her daughters, petitioners here. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for Texas Indemnity Insurance Company, holding as a matter of law that B. B. Halliburton was an independent contractor and not an employee of the assured, Kirby Lumber Corporation. 209 S.W.2d 775.

Petitioners (Mrs. Halliburton and her children) assign as error that the Court of Civil Appeals erred in holding as a matter of law that B. B. Halliburton was an independent contractor and not an employee. This assignment presents the only question necessary to be decided here.

In determining this question the evidence must be considered in the light most favorable to the verdict (Watson v. Texas Indemnity Ins. Co., Tex., 210 S.W.2d 989; Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088); and if there is any evidence of probative worth tending to show that deceased at the time he was killed was an employee of Kirby Lumber Corporation, the Court of Civil Appeals erred in rendering the judgment above stated.

B. B. Halliburton and his son were partners in the business of farming and cattle-raising before and at the time of their employment by Kirby Lumber Corporation. They owned two farm tractors and other farm machinery which, in addition to being used in farm work, were used in constructing dams and terraces for various persons. They received $3.00 an hour as compensation for their work with this equipment. While engaged in such work B. B. Halliburton was approached by Smith Sanders, a representative of Kirby Lumber Corporation, about a job of loading ties for the Corporation. Ties were assembled throughout the period of employment at tie-yards adjacent to spur tracks of the main lines of different railway systems in East Texas, and spotted on the various spur tracks. Supervisors, including Smith Sanders, were stationed by the Lumber Corporation at these tie-yards. E. B. Halliburton testified as follows concerning his father's negotiations with Mr. Sanders leading to the contract:

"* * * It was Sunday morning. Mr. Smith Sanders came to my mother and inquired where we were. He * * * told us he had us a job of loading switch ties for Kirby Lumber Corporation and said they would pay $1.50 per thousand for loading. Daddy told him he never loaded, didn't know anything about it. He says `You won't need to know anything about it. Some of us (supervisors) will be there to show you how to do and what to do.' * * * Daddy said he had rather not fool with it, had about all we could do at $3.00 per hour. He said he would pay us $3.00 per hour if we would go load two cars on the Center yard at the time. * * * `All you need to know is how to work', that they (the supervisors) would show us and tell us everything to do." (Emphasis ours.)

Upon completion of the test loads B. B. Halliburton informed Sanders they would have to be paid at the rate of $2.00 a thousand feet in order to average $3.00 an hour. After making a telephone call, Sanders said they would be paid at the higher rate. He also said if any of the employees of the Halliburtons were disagreeable, he wanted to fire them. It was understood that certain rules or specifications were to be observed in loading the ties, namely, that no car was to be loaded above the level of the top, ties of the same kind of wood were to be loaded together on the car, rejected ties known as "O-outs" were not to be loaded, each stack of ties was to be placed on two cross timbers on the car so as to prevent the ties from resting on the bottom of the car and no uninspected ties were to be loaded.

The supervisors, among other things, checked the number of ties loaded and saw to it that the above rules or specifications were followed. Whether, under the terms of the contract, the supervisory control was exercised after the cars were loaded, or while in the process of being loaded, was a controverted fact. In other words the character of control prescribed, or retained, by Kirby Lumber Corporation, was a controverted issue. The acts of control actually exercised by the supervisors were therefore pertinent in assisting a jury in determining what the contract really contemplated. Smith Sanders, one of the supervisors, testified in this connection, saying, among other things:

"I don't reckon there ever was a car that I wasn't in and out during the time he (B. B. Halliburton) was loading. * * * There has been several times when he (Halliburton) would start up with those ties that if they were fixing to slip or something that we would holler whoa or wait a minute or something like that."

He said further that he made suggestions during the process of loading, either safety suggestions or suggestions to facilitate the loading; that he called them suggestions because he (Sanders) was never dictatorial about anything; that one did not have to be dictatorial with Mr. Halliburton, as a suggestion was the same as an order with him. He said the supervisors wanted to see the cars were loaded right and that as a matter of fact he never made a suggestion, nor did Mr. Brinkley (another of the supervisors) ever make a suggestion in his presence to Mr. Halliburton that wasn't followed by Halliburton and his employees. He said also that one of the major details in the loading operation was...