Hartsfield v. Anchor Cas. Co., 60

• Decision Date: 08 October 1964
• Docket Number: No. 60,60
• Citation: 383 S.W.2d 455
• Parties: O. E. HARTSFIELD, Appellant, v. ANCHOR CASUALTY COMPANY, a/k/a Agricultural Insurance Company, Appellee.
• Court: Texas Court of Appeals

Page 455

383 S.W.2d 455

O. E. HARTSFIELD, Appellant, v. ANCHOR CASUALTY COMPANY, a/k/a Agricultural Insurance Company, Appellee.

No. 60.

Court of Civil Appeals of Texas, Tyler.

Oct. 8, 1964.

Rehearing Denied Nov. 5, 1964.

Robert Roch, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellant.

H. H. Prewett, Foreman, Dyess, Prewett, Henderson & Cantey, Houston, for appellee.

SELLERS, Justice.

This case originated in the 129th District Court of Harris County as a compensation case in which O. E. Hartsfield was plaintiff and Anchor Casualty Company was defendant.

On July 20, 1961, plaintiff was doing carpenter work on an apartment where Wolff Construction Company was the contractor for an apartment project. On this date plaintiff was standing on a stool and was hanging a door on a cabinet when the stool went out from under him and he fell to be floor. Mr. Hartsfield was taken by ambulance to a hospital where he was treated for a compression fracture of the first lumbar vertebra. He never returned to full-time work.

The trial was to a jury and the court submitted some sixteen Special Issues, all of which were answered by the jury in favor of the plaintiff. The jury found that plaintiff was totally and permanently injured while working for Walter F. Wolff and H. G. Wolff, doing business as Wolff Construction Company. The jury further found in favor of plaintiff for a lump sum settlement.

After the jury returned its verdict the plaintiff filed a motion for judgment on the jury's findings; the defendant filed motion for judgment non obstante veredicto. The trial court, after hearings on the motions denied the motion of plaintiff and granted defendant's motion and entered judgment that plaintiff take nothing. From this judgment the plaintiff has duly prosecuted this appeal. This appeal involves the jury's answers to Special Issues 1 and 2, which are as follows:

'SPECIAL ISSUE NO. 1

'Do you find from a preponderance of the evidence that on July 20, 1961, O. E. Hartsfield was not an independent contractor?

'ANSWER: 'He was not an independent contractor'

"He was an independent contractor.'

'An 'independent contractor' as used herein, is any person who in the pursuit of a business or occupation undertakes to do a particular work for other persons, and who has exclusive control of such work in respect to the details of the work to be performed and over whom the person for whom the work is being done has no right of control as to such details, and who represents the will of the person by whom the work is done only as to the results of his work and not as to the means or method by which it is accomplished.

'If you have answered Special Issue No. 1 'He was not an independent contractor', and only in that event, then answer:

'SPECIAL ISSUE NO. 2

'Do you find from a preponderance of the evidence that O. E. Hartsfield was an employee of Walter F. Wolff and H. G. Wolff, doing business as Wolff Construction Company on July 20, 1961?

'ANSWER: 'We do' or 'We do not.'

'You are instructed by the Court that within the meaning of the Workmen's Compensation Law of Texas an employee is a person in the service of another under any contract of hire, expressed or implied, oral or written, whereby the master retains or exercises, or has the right to exercise, the right of control in directing, not merely the end sought to be accomplished, but also the means and details of its accomplishment, not merely what shall be done, but how it shall be done.'

It is the plaintiff's contention that the evidence is sufficient to support the jury's answers to these issues, the trial court having followed the defendant's contention that there is no evidence to support the jury's findings.

In deciding this issue it is this court's duty to look to the evidence most favorable to the verdict and reject all evidence unfavorable to the jury's findings. Elder v. Aetna Casualty & Surety Co., 149 Tex. 620, 236 S.W.2d 611.

We take the following statement of the evidence from appellant's brief:

'As stated before, the Plaintiff went to work for the elder Mr. Wolff, H. G. Wolff, around 1951 or 1952 and worked off and on for him for many years. Plaintiff began working in February of 1961 for Mr. H. G. Wolff and his son, Walter F. Wolff, on an apartment project, described as the 'Attucks Street' job, and while the Plaintiff was working on that job, Mr. Walter F. Wolff asked him to sign some papers, with a statement, 'here's some papers concerning your insurance; I'd like to get you to sign them for me.' The papers were not filled out, and Plaintiff did not read the papers, but testified that he signed one or more copies of the papers handed to him by Mr. Wolff. Plaintiff had never heard of an apartment job described as the 'Sixth and one half street job' when he signed the papers in February while he was on the 'Attucks Street job.'

'After completing the 'Attucks Street job', there was a lapse of a week or two before Plaintiff began working on the 'Seventeenth Street job'. At the time he began working on the 'Seventeenth Street job', there was no agreement that he would be working on the 'Sixth and one half street job', but while he was working on the 'Seventeenth Street job', he learned of the 'Sixth and one half street job'. Shortly after finishing his work on the 'Seventeenth Street job', Plaintiff started to work on the 'Sixth and one-half street job'. He was employed to do trim carpentry work on the apartments on the 'Sixth and one half street job', and was to be paid $175.00 per apartment. Plaintiff and Mr. Walter Wolff had some discussion regarding the laying of some pine floors in the 'Sixth and one half street job' apartments, which the Plaintiff did not do, but made arrangements for his son to perform.

'Defendant offered into evidence Defendant's Exhibit No. 5 which purports to be a 'labor contract' covering ten apartment units at 3514 and 3521 Attucks. Plaintiff testified that he did sign some blank pieces of paper while he was working on the 'Attucks street job', and that this appeared to be his signature on Defendant's Exhibit No. 5. Defendant also offered into evidence Defendant's Exhibit No. 6, which purports to be another 'labor contract' to trim out tree units of apartments at 211 West Seventeenth Street; lay pine floor in four units of apartments at 722 East Sixth and one half street; and trim out five units of apartments at 722 East Sixth and one half street. Plaintiff testified that it was his signature on Defendant's Exhibit #6. Plaintiff testified regarding Defendant's Exhibit No. 6 as follows on cross-examination:

"Q. Now this--now, this is an identical contract as Defendant's Exhibit No. 5 is it not, except for the work that is to be done? I am talking about it as a printed; I didn't make myself clear.

'A. You remember these forms I signed on Attucks Street were not filled out, and this is one of them.

'Q. And it is your testimony that this was signed when you were workover on Attucks Street?

'A. Yes, sir.

'Q. And it wasn't signed on the 2nd day of June at all?

'A. No, sir, it wasn't.

'Q. When was it signed?

'A. At the time that I was--the other one was signed on Attucks Street.

'Q. You don't know when that was? Was it--* * *

'A. (Interruption) Somewhere in February.

'Q. And you signed it and this one, No. 5 and Defendant's No. 5, you say it was in blank?

'A. It was. I was working and the other man came around. * * *

'Q. (Interrupting) Just answer my question. * * *

'MR. ROCH: (Interrupting) Your Honor, I think he is entitled to answer the question. We object to counsel cutting him off.

'THE COURT: Of course, the witness is entitled to explain it. He should conclude his answer before you ask the next question.

'Q. I merely asked you if this was signed in blank; was it?

'A. It was signed in blank.

'Q. All right.

'Now, you--you were given a copy of this were you not, Mr. Hartsfield?

'A. No, sir, I did not receive a copy of it.

'Q. You didn't get a carbon copy of either one of these contracts?

'A. No, sir, I didn't.

'Q. Now, are you sure about that?

'A. Absolutely.'

'Plaintiff testified regarding his arrangement with Mr. Walter Wolff concerning the 'Sixth and one half street job' as follows:

'Q. Let me ask you this:

On this Sixth and a half street job, what were you supposed to do? Trimming out apartments again, or what?

'A. Yes, sir, trimming out apartments.

'Q. Was that for so much an apartment?

'A. Yes, sir.

'Q. How much was it an apartment, if you remember?

'A. I believe it was $175.00.

'Q. Per apartment?

'A. Per apartment.

'Q. All right, sir, Was there also some flooring that Mr. Wolff wanted laid in those apartments?

'A. Yes, sir, there was some pine floors to be laid.

'Q. Did he talk with you about that?

'A. Yes, sir.

'Q. Did you do that work?

'A. No, sir, I did not.

'Q. What happened about that?

'A. I told him I had a son that could lay 'em, lay that for him. And I made the arrangements for my son to come lay the floor.

'Q. Did your son come lay the floor?

'A. Yes, sir.

'Q. Who paid him; did you pay him or did Mr. Wolff pay him?

'A. Mr. Wolff paid him.

'Q. Do you know how Mr. Wolff paid him?

'A. In cash.

'Q. That was for laying the floors?

'A. Yes, sir.

'Q. Now, did you start about that time, or a little bit later, working on the apartments?

'A. Yes, sir, I did.

'Q. Now, let me ask you this:

'When you talked to Mr. Wolff about working these apartments, did he send specifications to you, plans, and say, 'Now, I have got five apartments, or so many apartments, that I want trimmed out, and I want you to give me a bid on how much money you will do it for.' Did he do that?

'A. No, sir; no, sir.

'Q. All right. Did he--what did he do; how did he come to this $175.00, or whatever the figure was, whatever he was going to pay you, apparently how did that come about?

'A. He had two of his other men that was working for him trim out an apartment, as he wanted it...