Latta v. Texas Emp. Ins. Ass'n

• Decision Date: 07 November 1951
• Docket Number: No. 9990,9990
• Citation: 243 S.W.2d 949
• Parties: LATTA v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Court of Appeals

Page 949

243 S.W.2d 949

LATTA v. TEXAS EMPLOYERS' INS. ASS'N.

No. 9990.

Court of Civil Appeals of Texas, Austin.

Nov. 7, 1951.

Rehearing Denied Nov. 28, 1951.

Adams, Browne & Sample, Ernest J. Browne, Beaumont, for appellant.

Cecil, Keith & Mehaffy and Jas. W. Mehaffy, Beaumont, for appellee.

HUGHES, Justice.

This is Workmen's Compensation case in which a summary judgment was rendered for the alleged insurer, Texas Employers' Insurance Association. Appellant, J. S. Latta, alleged himself to be the insured under a policy issued by such association to his employer, Carpenter Production Company, and that he was injured while '* * * in the course of his employment with said employer and while he was performing the usual tasks of such employer in such employment * * *'

Appellee Insurance Company filed a motion for summary judgment in which it admitted that it had issued a Workmen's Compensation Insurance policy to the Carpenter Production Company. It pleaded, however, that appellant was not, at the time of his injury, an employee of Carpenter Production Company, but was, at such time, an employee of 'a third party, to-wit, Fralise Farms, Inc., a completely separate, entity, connected with Carpenter Production Company only in the sense that some of the stockholders of Fralise Farms are also stockholders of Carpenter Production Company.'

Attached to this motion was the affidavit of Ray Edmondson, the material portion of which we quote:

'My name is Ray Edmondson and I reside in Sour Lake Hardin County, Texas. I am Secretary-Treasurer, of Fralise Farms, Inc., and I am also employed as a bookkeeper for Carpenter Production Company. * * *

'I have been employed as a bookkeeper for Carpenter Production since 1946. I know J. S. Latta. In my position as bookkeeper for Carpenter Production Company, I am familiar with the employees of that company, and Mr. Latta has never been employed by Carpenter Production Company.

'Fralise Farms, Inc., is a Texas corporation. * * * It * * * was incorporated in the summer of 1947. Fralise Farms is engaged in the business of rice farming, and owns some twenty-nine hundred acres of land near Sour Lake, Texas. In my position as Secretary-Treasurer of the company, I employed Mr. Latta to work for Fralise Farms, Inc. Fralise Farms has a contract with Mr. Nolte and Mr. McDermott, who farm the land belonging to the corporation. These men furnish the labor directly connected with the farming of rice, as well as the farming equipment. Fralise Farms, under the arrangement with Nolte and McDermott, furnishes seed, water, fertilizer and the land itself, and also furnishes the labor to perform clearing operations, fencing, and also the labor incident to the items Fralise Farms is to furnish under the contract. Most of the labor furnished by Fralise Farms consisted of the construction of canals, roads and flumes.

'My connection with Carpenter Production Company is merely as an employee. I own no stock in that company and do not hold any office in the company. Carpenter Production Company is in business of producing crude oil. I have no authority to employ anyone for Carpenter Production Company, and I have never hired anyone for that company.

'From time to time during the slack period on the farm, Fralise Farms contracts to do work on oil leases in Sour Lake. Fralise Farms enters into this type of contract with many oil producing companies. Under the customary arrangement, Fralise Farms, which owns a caterpillar tractor, would enter into a contract with an oil company, under the terms of which Fralise Farms would rent the tractor and an operator to perform a certain job. Mr. Latta would frequently do this type of work, and after he had performed this work, he would turn in his time, and I, as Secretary-Treasurer of the company, would in turn bill that person or company for the service, and payment would be made to Fralise Farms. My records show that this type of arrangement was had with Cecil Oil Corporation, W. F. Newton, the Texas Company, Carpenter Production Company, Slatex Well Service Company, Cecil-Hagan, and perhaps others.

'I am familiar with the type of work which Mr. Latta was doing at the time he alleges he was injured. This was work for Fralise Farms, Inc. and Carpenter Production Company had no connection with it whatsoever.

'* * * the only person who owns stock in both Fralise Farms and Carpenter Production Company is Mr. F. H. Carpenter, who is a majority stockholder of Fralise Farms, Inc., but a minority stockholder of Carpenter Production Company.'

Appellant replied to this motion for summary judgment by pleading that his status as an employee of Carpenter Production Company was established conclusively by the deposition evidence of himself and Mr. Edmondson, or in the alternative that such evidence raised a fact issue concerning the same.

We now set out the substance of the material evidence introduced on the motion for summary judgment.

Appellant testified that on the date he was injured he was working for the Carpenter Production Company; that he was hired at the office of the Production Company by Ray Edmondson who was supposed to be its Superintendent and that Edmondson paid and told him what to do. He testified that he operated a bulldozer, worked in oil fields and dug ditches, hauled pipe and helped move rigs.

Appellant was paid by check, delivered at the office of Carpenter Production Company but the checks were all made 'on Fralise Farms.'

As to what he was doing at the time of his injury, appellant testified:

'Q. On the day you were hurt, where were you, out in the oil field working? A. No, sir. I was doing construction work, out in the field.

'Q. You mean oil field construction work or construction work in connection with rice farming? A. I don't know what you call it. It was hauling cement and gravel and building forms for a pipe.

'Q. For a pipe? A. Yes, sir.

'Q. Do you know what that pipe was to be used for? A. Yes, sir, irrigation purposes.

'Q. Irrigation purposes in connection with rice farming, is that right? A. Well, I guess you would call it that.

'Q. Well, what were they going to irrigate? A. Rice.

'Q. Who was giving you your orders that day? A. I got my orders from Mr. Edmondson.'

He had been working on this particular job about one week before his injury.

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