Hayes v. Travelers Ins. Co., 4001

• Decision Date: 10 May 1962
• Docket Number: No. 4001,4001
• Citation: 358 S.W.2d 254
• Parties: Alvin HAYES, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 254

358 S.W.2d 254

Alvin HAYES, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.

No. 4001.

Court of Civil Appeals of Texas, Waco.

May 10, 1962.

Rehearing Denied May 31, 1962.

Donald V. Yarborough, Yarborough, Yarborough & Johnson, Dallas, for appellant.

Thompson, Knight, Wright & Simmons, Timothy E. Kelley, Dallas, for appellee.

WILSON, Justice.

Judgment for insurer was rendered on its motion in this workmen's compensation case, notwithstanding jury findings that appellant was an employee of Gulf Oil Corporation, as he alleged; and notwithstanding a further finding that Gulf conducted a partnership in the operation of a filling station. We affirm.

Gulf leased a service station and equipment to B. J. McCullough. The written lease agreement provided lessee should pay utility charges, license fees, taxes and other charges; should keep the premises in good repair and in clean, safe and sanitary condition; and that lessor might declare the lease terminated upon lessee's default in performance of its covenants. It recited that none of its provisions should be construed as reserving to lessor any right to direct or exercise any control over the manner of conducting the service station business or operations on the leased premises; and that lessee should have entire control and direction thereof. Lessee agreed to pay a rental of 1.35cents per gallon on motor fuel sold, with a fixed monthly minimum and maximum.

Appellant was hired by McCullough (who operated the station with a partner, LaCour) as a porter. His duties were to change and repair tires, clean the premises (including restrooms), pump gas, and remove trash. McCullough paid his wages. He was injured when he slipped on grease while changing a tire.

The evidence shows no restriction by Gulf as to the price at which McCullough sold products; or, except as to gasoline, as to his selling products of any other producer or manufacturer. A Gulf sign was displayed on the building, which was painted 'Gulf colors.' Gulf paid no utility or other charges; and neither employed, paid, controlled hours or type of duties of McCullough or the station employees. It gave no instruction as to when the station would open or close, furnished no uniforms, paid no overhead expense, paid no social security tax, withheld no wages for income tax, bore no loss, and received no profit from the station's operations. Gulf furnished its road maps for customers. McCullough could sell for cash or credit. If he honored a valid Gulf Credit card, Gulf paid him; if he accepted one which was invalid, resulting in non-payment, he bore the loss. Gulf furnished stationery for credit charges at no cost to the lessee. Appellant wore a uniform bearing Gulf insignia.

Appellant testified either McCullough, or his partner Lacour, were always at the station and told him what to do. He further testified that Gulf's retail sales representative visited the station weekly to inspect it, and 'one day when he came there he said, 'get that grease off the wall, make the place look slick.' He wanted it to look real clean.' He told appellant to keep the restrooms clean, 'because it was very important.' Appellant was coming out of the restroom and met the representative. Water from the basin had overflowed, 'and he asked me was I going to get the mop and get that up, and I said I would, and he said it would be...