Harrison v. Harrison

• Decision Date: 13 March 1980
• Docket Number: No. 1230,1230
• Citation: 597 S.W.2d 477
• Parties: Benford HARRISON, Individually and d/b/a Benford Harrison Timber, Appellant, v. John Edd HARRISON, Appellee.
• Court: Texas Court of Appeals

Page 477

597 S.W.2d 477

Benford HARRISON, Individually and d/b/a Benford Harrison

Timber, Appellant, v. John Edd HARRISON, Appellee.

No. 1230.

Court of Civil Appeals of Texas, Tyler.

March 13, 1980.

Vernon R. Berry, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, Gus E. Meriwether, Sallas & Meriwether, Crockett, for appellant.

H. L. Morgan, Morgan, Dudensing & Tullis, Crockett, for appellee.

SUMMERS, Chief Justice.

This is a personal injury case.

Appellee John Edd Harrison initiated this suit seeking recovery for personal injuries sustained in an accident which occurred on September 20, 1973. Appellee, plaintiff below, was injured by a log which fell from his loaded log truck at the Herndon Chalmers sawmill in Trinity, Texas. Appellee filed suit against his brother Benford Harrison, individually and doing business under the assumed name of Benford Harrison Timber, alleging that he was an employee of appellant; that he was injured in the course of such employment; that appellant was eligible to be, but had not elected to become, a subscriber under the workman's compensation laws of Texas; that appellant owed appellee certain nondelegable duties, among which were to furnish reasonably safe and suitable machinery, implements and appliances to carry on his work; and that appellant's failure to fulfill such duties was a proximate cause of the accident and appellee's injuries and damages.

The case was tried to a jury which, in response to special issues submitted, found that appellant failed to furnish reasonably safe and suitable machinery, implements and appliances to carry on the work; that such was a proximate cause of the occurrence in question; that appellee was an employee of appellant at the time of the occurrence in question; and that the injury to appellee was sustained in the course of employment for appellant. In accordance with the jury's verdict and in conformity with appellee's pleadings, the trial court rendered judgment against appellant in the amount of $100,000.00.

We affirm.

From this adverse judgment, appellant predicates this appeal upon nine points of error. Points of error Nos. 1 through 3 complain of the jury's finding that appellant Benford Harrison failed to furnish appellee with reasonably safe and suitable machinery, implements and appliances because there is no evidence or insufficient evidence to support said finding, or the finding is against the great weight and preponderance of the evidence. Points of error Nos. 4 through 6 assert the same evidentiary complaints concerning the jury's finding that such failure was a proximate cause of the occurrence in question. Appellant contends through these six points that the trial court erred in failing to render judgment for appellant non obstante veredicto or, in the alternative, that said judgment of the trial court should be reversed. Appellant further complains that the trial court erred in overruling appellant's objection to the trial court's charge because the trial court failed to submit an issue as to whether at the time of the occurrence in question appellee John Edd Harrison was a "special" employee of Arnold Starr (Point No. 7); in overruling appellant's objection because the trial court refused to give appellant's Requested Instruction No. 1, to the effect that an employee can be in the general employment of one and at the same time be a special employee of another (Point No. 8); and finally, Point of Error No. 9, in overruling appellant's motion for mistrial arising from repeated inferences in the opening and closing arguments by appellee's counsel which invited the jury to speculate as to whether appellant was covered by a policy of insurance.

Appellant is in the business of hauling logs and pulpwood and has been for many years. John Ed Harrison, appellee, worked for his brother and did whatever appellant told him to do, whether it might be using a saw, driving a truck or anything else connected with Benford Harrison's business. Both men were experienced loggers. At the time of the occurrence in question, and for sometime prior thereto, appellant had three or more regular employees; he knew that he was eligible to be a subscriber under the workman's compensation laws of the state of Texas but had elected not to become a subscriber.

On or about September 1, 1972, Benford and John Edd Harrison entered into an oral understanding between them, whereby for appellant's tax purposes and other records John Edd, appellee herein, would be considered a contractor for Benford Harrison. However, as far as the working relationship and arrangement was concerned, no change had occurred. Benford still exercised complete control over the details of the work performed by his brother John Edd. John Edd did not haul logs on his own; Benford made the arrangements for the hauling of logs; and John Edd did the hauling. The record shows that this was the procedure at the time the accident occurred; that Benford made a deal with Arnold Starr to haul his logs to the Herndon Chalmers mill; and that John Edd was doing the hauling with his truck and Benford's trailer, following orders given to him by his brother Benford.

On the day of the occurrence in question, John Edd was in the process of hauling his second load of Arnold Starr's timber. Starr was riding with John Edd, because his truck had broken down, and he had no other way to get home. When they arrived at the mill about 5:30 p.m., there was nobody from the mill to help them unload. Larry Caddenhead, another hauler, had just brought a load of logs to the mill, and all three agreed to unload the two trailers. In order to unload the logs at the Herndon Chalmers mill, one person, operating a fork lift, would pull up against the side of the logs on the trailer, while another would pull the chain off that holds the logs on the trailer during transit and unlatch the standards on the driver's side of the trailer so the logs would fall. Then the fork lift operator would back up from where he was positioned on the passenger side of the trailer holding the logs in place, thereby causing the logs to fall off. Any logs that do not fall are pushed off using the fork lift. This procedure was utilized in unloading the Caddenhead trailer without incident and is the normal and accepted procedure of the industry at this particular mill.

Arnold Starr drove Larry Caddenhead's trailer away from the area after it was unloaded. John Edd then drove his trailer in to be unloaded. Larry Caddenhead operated the forklift, and John Edd was to take the chain off and trip the standards. At this point, Arnold Starr was just a spectator. John Edd got the chain off the logs while Caddenhead got onto the forklift and maneuvered it up against the logs. Caddenhead was not satisfied with the way the lift was holding the logs; he told John Edd that he wanted to reposition and backed away from the trailer. When he did so, the load of logs leaned back toward him and then rocked back the other way toward John Edd Harrison, causing a log to fall from the top of the pile. As it fell, it hit appellee on the head and shoulder before it landed on his left leg. The log caused a severe compound fracture of the lower leg along with deep lacerations around the ankle and heel.

Appellant, by his first six (6) points of error, complains of Special Issues Nos. 1 and 1A, in that there was no evidence or factually insufficient evidence to support the jury's findings regarding said special issues, or that such findings were against the great weight and preponderance of the evidence.

In determining a "no evidence" point, which is a question of law, we consider only that evidence, if any, and the reasonable inferences therefrom, which viewed in its most favorable light, supports the jury finding and we must reject all evidence and inferences which are contrary to the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Biggers v. Continental Bus Systems, 159 Tex. 351, 303 S.W.2d 359, 363 (1957); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914).

In determining an "insufficient evidence" point, or a point alleging the verdict or finding to be against the overwhelming weight and preponderance of the evidence, said points being a question of fact, we consider and weigh all the evidence in the case to determine whether the evidence is factually insufficient to support a finding of a vital fact or the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust and that the finding should be set aside and a new trial ordered. Garza v. Alviar, supra at 823; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951). Special Issues 1 and 1A, together with the jury answers thereto, read as follows:

"SPECIAL ISSUE NO. 1

Do you find from a preponderance of the evidence that on the occasion in question, Benford Harrison failed to furnish to John Edd Harrison reasonably safe and suitable machinery, implements and appliances to carry on his work?

Answer 'Yes' or 'No.'

Answer: 'Yes.'

If you have answered Special Issue No. 1 'Yes' and only in that event, then answer:

SPECIAL ISSUE NO. 1A

Do you find from a preponderance of the evidence that such failure was a proximate cause of the accident?

Answer 'Yes' or 'No.'

Answer 'Yes.' "

As stated above, appellant although eligible was not a subscriber under the workman's compensation laws of Texas. Under these circumstances in an employer-employee suit, the common law defenses of contributory negligence, assumption of the risk and fellow servant negligence are not available to the employer. Tex.Rev.Civ.Stat.Ann. art. 8306, secs. 1 and 4 (1967). ¹ It would still be incumbent upon the injured employee, in order to recover for his injuries, for him to allege and prove negligence on the part of his employer proximately causing the injuries. Sears, Roebuck & Company v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955); J. Weingarten, Inc....