Hilgenberg v. Elam

• Decision Date: 25 January 1946
• Docket Number: No. 2526.,2526.
• Parties: HILGENBERG et al. v. ELAM.
• Court: Texas Court of Appeals

192 S.W.2d 799

HILGENBERG et al. v. ELAM.

No. 2526.

Court of Civil Appeals of Texas. Eastland.

January 25, 1946.

Rehearing Denied February 22, 1946.

Appeal from District Court, Taylor County; J. R. Black, Judge.

Suit by Eva C. Hilgenberg and another against A. R. Elam to recover for the death of L. W. Hilgenberg who was struck by a bulldozer leased from defendant. From a judgment for defendant, plaintiffs appeal.

Affirmed.

Smith & Eplen and Scarborough, Yates & Scarborough, all of Abilene, for appellants.

House, Mercer, Edwards & Irvin, of San Antonio, and T. J. McMahon, of Abilene, for appellee.

GRISSOM, Justice.

Mrs. Eva C. Hilgenberg and Mrs. Mary Hilgenberg, surviving wife and mother, respectively, of L. W. Hilgenberg, deceased, sued A. R. Elam for damages caused by his death. L. W. Hilgenberg and Alton J. Willingham jointly owned a farm. Part of the farm had a growth of trees which the owners wanted uprooted. Baldridge & Son owned a bulldozer. They leased it with a driver to Elam. Baldridge & Son selected the driver and paid all the operating expenses and for repairs. The operator of the bulldozer was hired and paid by Baldridge & Son, and they alone had the power to discharge him. Baldridge & Son leased the machine with the driver to Elam for $6.25 an hour. Elam was engaged as a contractor in building slush pits in the oil fields. When he did not need the machine and its operator in his business he would sublease the bulldozer, together with the driver, to any farmer or rancher needing it. Elam subleased the machine with the driver to Willingham and Hilgenberg for $8.50 per hour. While the bulldozer, driven by Bennett, was knocking down trees pointed out by Mr. Hilgenberg Bennett backed the bulldozer over Hilgenberg and killed him.

Plaintiffs alleged that Bennett was the servant of Elam at the time Hilgenberg was killed; that Elam was an independent contractor, engaged in operating the bulldozer on an hourly basis, and that Hilgenberg's death was caused by the negligence of Elam's servant or employee, Bennett, and that Elam, therefore, was liable for damages suffered by plaintiffs as a result of Bennett's negligence. Elam answered that Bennett was not his agent, servant or employee while he was working on the Willingham-Hilgenberg farm; that he was the servant of Willingham and Hilgenberg; that Willingham and Hilgenberg had complete control of the work, with the right of directing not only the work to be done, but the means and details of its accomplishment; that they had the right to point out not only what should be done but how it should be done; that the bulldozer was owned by Baldridge & Son and its operator, Bennett, was employed and paid by them; that Elam merely leased the bulldozer and Bennett to Willingham and Hilgenberg; that Elam was, at most, a broker, or lessee from Baldridge and Son and lessor to Willingham and Hilgenberg; that in doing the work on said farm Bennett was not Elam's agent, servant or employee. Defendant further alleged that Hilgenberg was guilty of contributory negligence.

Defendant filed a motion for an instructed verdict, based, in substance, upon the grounds alleged in his answer as heretofore stated. Said motion was granted and judgment was rendered for the defendant. Plaintiffs have appealed.

Plaintiffs contend (1) that whether Bennett was the servant of Elam, and (2) whether Hilgenberg was guilty of contributory negligence were questions of fact which should have been submitted to the jury.

In making the trade with Elam for use of the bulldozer and driver, Willingham and Hilgenberg acted through Willingham. Mr. Willingham was called as a witness by the plaintiff. He testified, in substance, that he, acting for himself and Hilgenberg, leased the machine with the driver from Elam, agreeing to pay therefor $8.50 per hour; that through the middle of the farm there was a creek with heavy timber and brush; that the first day the bulldozer was operated on their farm they had all the timber removed; that they decided this was too expensive; that they started opening up lanes through the timber; that at first Willingham and Hilgenberg had the driver of the bulldozer pile the brush and timber together; that they concluded this was too expensive, and began just knocking the trees down and running over them and making a circle around any tract they wanted opened up; that they were planning to dig a tank on the farm and had made a contract with Mr. Thomas to build the tank; that the location of the tank site had been staked out by the oil conservation authorities; that in surveying the tank site it was necessary to clean the brush and trees out of the draw where the tank was to be built; that on the day Hilgenberg was killed Mr. Hilgenberg had Mr. Glaze, who was working for Mr. Willingham, "go after the bulldozer and operator to clean out that new prospective tank site." Willingham testified that Bennett had physical control of the machine; that he and Hilgenberg had the right to show Bennett where to work and what to do; that so far as the movements of the machine were concerned Hilgenberg and Willingham "had nothing to do with that, except to point out the directions and places where he wanted it cleaned"; that Willingham and Hilgenberg pointed out the trees they wanted knocked down if Bennett wasn't operating just where they wanted him to. He testified:

"Q. In other words, you would stop him and tell him `I want this done?' A. Yes, if I wanted to.

"Q. And I believe you testified back here, first you had the trees knocked into piles? A. Yes.

"Q. And then later you changed your method? A. That's right.

* * * * *

"Q. Mr. Willingham, in your trade with Mr. Elam was it understood that you were going to direct the man or send somebody there to direct the man as to what to do and how to do it? A. It is entirely possible that we did for starting the machine, but as far as keeping a man on the job, no.

"Q. Your deposition was taken by agreement of the parties, in this Court House, on September the fourth, 1944, was it not? A. That's possible.

"Q. I will ask you if this question was not asked you at that time, by myself; * * * `Q. How long had Mr. Hilgenberg been directing the driver?' A. For a time. I could not tell you. He directed him the last few times—last few days he was down there. He had made several trips down there and directed the driver.

* * * * *

"A. The same driver, Mr. Hilgenberg had directed at different places over the farm.

"Q. The same driver he had directed different places over the farm? A. Yes, sir.

"Q. You mean by that he would tell him what trees he wanted taken out? A. Yes, sir.

"Q. Or approximately what trees he wanted taken out? A. Yes, sir.

"Q. He would tell him exactly how far he wanted him to go and when he wanted him to stop, I believe you said? A. Approximately that, Mr. House.

"Q. That's your answer. `A. Approximately that, Mr. House.' Quite often he would start him through a pile of timber and tell him to clean out a path all of the way through. Head him in the direction he wanted him to go. Naturally he would not walk by and show him every tree at that time. He would give him the direction.

* * * * *

"`Q. But if he missed a tree and he wanted it out he would tell him what to do about it?' A. Yes, sir.

"Q. He was there to do whatever Mr. Hilgenberg wanted done? A. Yes, sir.

"Q. And Mr. Hilgenberg had full control in telling him what to do? A. Anything that Hilgenberg said was satisfactory with me.

"Q. Satisfactory to you? A. Yes, sir.

"Q. And you meant the driver—A. Naturally so.

"Q. —to act accordingly? A. Yes, sir.

"Q. And obey whatever he told him to do in regard to it? A. That's right.

"Q. That was your understanding with Mr. Elam? A. Mr. Elam knew—did not know that I had a partner on the farm, as far as I know.

"Q. I see, but as far as your trade with Mr. Elam was concerned, Mr. Elam understood that you were going to direct that man or send somebody there to direct him? A. That's right.

* * * * *

"Q. And you knew that all Mr. Elam had to do with it was that he was to get paid so much an hour? A. Right.

* * * * *

"Q. And that's the facts about it? A. As far as I can remember, yes, sir.

"Q. Then your understanding with Mr. Elam was that you or you would have somebody there to direct and tell the driver exactly what to do and how to do it, wasn't it?

* * * * *

"The witness: The understanding with Mr. Elam that I had was that I would start him off in direction and any change in the future—I had understood with Mr. Elam to be there and show him where to start or to have someone there to show him where to start his work, but as far as keeping someone on the job all of the time it was not the agreement.

"Q. Didn't say whether he did or not? A. No, sir.

"Q. But your understanding was also that if Mr. Hilgenberg was out there and told this boy to do something, he was supposed to do it wasn't he? A. That's right."

The defendant Elam, called by the plaintiff, testified that he had the bulldozer with a driver leased from Baldridge & Son; that Baldridge & Son hired the driver of the bulldozer, paid him and alone had the power to discharge him; that Baldridge & Son paid all expenses of operating the machine and repairing it. He further testified:

"Q. You mean you didn't have anything to do with the operation of the machine, is that what you mean? A. In his spare time I would lease him out or hire him out to ranchers or anybody who wanted to do tanking.

"Q. What I am trying to find out is, who was this fellow Bennett working for you or Baldridge? A. He was working for Baldridge.

* * * * *

"Q. During the time that you had that machine leased from Baldridge, you could rent it out to a farmer or to a stockman or to anybody else that you saw proper? A. I contracted this work in the oil field, and in my idle time I would lease any rancher or any farmer who wanted any of that work done the machine.

"Q. And the driver? A....